■"oaiAimrdn^ 


'au3iivj-3vj  •  'auauvjjvj  • 


^'Jidjnviur" 


TUNIVERS'/A 


'|^A(lVi..ii!':;\- 


K%\ 


y 


^^ummo/-^     ^ 


^•OFCAIIFO/?^ 


^^^» 
^z 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


LAW  LIBRARY 


ij'lJjM  iJl 


f/,,.  xv\^-URRA!. 


^  'i: 


1/?^        ^OFCAIIFO/?^^ 


A'rtEUNIVf 


\Nfilfr. 


■■>.  <: 


-A^.OFCAIIF' 


.v^ 


^OAavaail-^  %il3DNVS0V<^^       ^Aa3AINft3WV^  #      ' 


'^'i  i^: 


Yr. 


pv  F .  r  Ai  I  L  n  ri . 


^IX 


I  ne  Aurri  r. 


>- 


^ 


ONIVERS/:. 


so# 


)^  i 


,^\UL'N1\ER^^//^       ^lO|ANC[lfj^^  ^^OF-CAIIFO/?^- 


%i30Nvsoi^"^''     ""-^/yaBAiNnjwv''       %0driv3jO>^' 


A  DIGEST 


THE  INTEKNATIOML  LAW 


UNITED  STATES, 


lAKKX    11;<).\I 


D0CUMEXT8  ISSUED  BY  PRESIDENTS 
AND  SECRETAEIES  OF  STATE, 


AND    IKOM 


DEnsiOXS  OF  FEDEIiAL  nUliTS  and  OPIXIOXS  OF  ATTORNEVS-GEXERAL 


F.DITlOn    ]!V 


FKAXCIS    WMARTON,  LI..  !:>., 

AUTHOR  or  A  TRKATISK  ON  CONKI.KT  OF  LAWS,  AND  OF  COMNtENTARIKS 
ON  A>rKRI(AN  LAW. 


IN   TIIliEE    VOLUMES, 


sKC'oxo  i;oiTio:v. 


VOLUMK  ir. 


WASTTINrrTOX: 

GOVERNMENT    l•IlI^•TIN(^   OFFICE. 

18. ST. 


T 


\j^l^ 


CHAPTER  VI. 

TREATIES. 

I.    Negotiation,  $  130. 
II.    Katificatiox  and  approval. 

(1)  As  to  treaty  making  power,  $  131. 

(2)  As  to  legislation,  $  131a. 

III.      "WnEX  TREATY  GOES  INTO  EFFECT,  $  132. 
IV.      CONSTRUCTIOX  AITD  INTERPRETATIOX,  $  133. 

V.     "Favored  nation,"  $  134. 
VI.    Subsequent  war:  effect  of,  $  135. 
VII.    Subsequent  annexation:  effect  of,  $  136. 
VIII.    Subsequent  revolution:  effect  of,  $137. 
IX.    Abrogation  by  consent,  by  repudiation,  or  by  change  of  circum- 
stances, $  137a. 
X.    Treaties  when  constitutional  are  tub  supreme  law  of  the  land, 
but  may  be  municipally  modified  by  subsequent  legislation,  5  138. 
XI.    Judiciary  cannot  control  executiat:  in  treaty  making,  $  139. 
XII.    Special  treaties. 

(1)  Argentine  Republic,  §  140. 

(2)  Austria-Hungary,  $  141. 

(3)  Barbary  Powers,  $  141a. 

(4)  Bavaria,  $  142. 

(5)  Brazil,  $  143. 

(6)  China,  I  144. 

(7)  Colombia  and  New  Granada,  $  145. 

(8)  Costa  Eica  and  Honduras,  $  146. 

(9)  Denmark,  $  147. 

(10)  France. 

(a)  Treaty  of  1778,  $  148. 

(b)  Convention  of  1800-'01,  $  148a. 

(c)  Treaty  of  1803  (cession  of  Louisiana),  $  1486. 

(d)  Subsequent  treaties,  $  148c. 

(11)  Germany,  $  149. 

(12)  Great  Britain. 

(a)  Treaty  of  1783  (Peace),  $  150. 
(6)  Jay's  treaty  (1794),  $  150a. 

(c)  Monroe-Pinkney  and  cognate  negotiations,  $  150&. 

(d)  Treaty  of  Ghent  (1814),  $  150c. 

(e)  Conventions  of  1815,  1818,  $  150<i. 
(/)  Ashburton  treaty  (1842),  $  150e. 

(g)  Clayton-Bulwer  treaty  (IbSO),  $  150/. 

(h)  Treaty  of  Washington  (1871)  and  Geneva  tribunal,  $  150^. 

(13)  Ilanseatic  Repnblic,  $  151. 

(14)  Hawaii,  ^  151a. 

(15)  Italy,  $  152. 

(10)  Japan,  $  153.         /^ /■»►--,>■• 


<ifiy?'12 


§  130.]  TREATIES.  [CHA1>.  VI. 

XII.  Special  tkkatiks— ContiuuoJ. 

(17)  Mexico,  v^  ir)4. 

(18)  Netborlauds,  ^  155. 
(It))  Paraguay,  ^  l.^>n. 
(•JO)  1\tu,  ^  ir.7. 

(21)  Portugal,  $  158. 

(22)  Russia.  $  159. 

(23)  Sardinia,  ^  1C)0. 

(24)  Spain. 

(fl)  Treaty  ofl795,  ^  IGl. 

(6)  Florida  negotiations  and  treaty  of  181G-'20,  ^  IGlfl. 

(25)  Sweden  and  Norway,  ^  1G2. 

(26)  Switzerland,  $  16:5. 

(27)  Tripoli,  $  IGl. 

(28)  Turkey,  $  1C5. 

(29)  Venezuela,  ^  lG5rt. 

(30)  "Wurteraberg,  ^  IGG. 

I.  NEGOTIATION. 

§  130. 

As  to  diplomatic  discretion  and  correspondence,  see  supra,   ^$  78  ff. 
As  to  Indian  treaties,  see  infra,  ^  210. 

When  treaties  are  excliaiifjed  betweeu  two  sovereigns,  the  better 
practice  is  for  the  representative  of  each  sovereign  to  take  priority  over 
that  of  the  other  in  the  copy  of  the  treaty  which  is  to  be  retained  by 
his  own  government. 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  J.  Q.  Adams;  Mar.  '[?,,  1815.     MSS.  Inst., 
Ministers. 

"It  is  the  practice  of  the  European  Governments,  in  the  drawing  up 
of  their  treaties  with  each  other,  to  vary  the  order  of  naming  of  the 
parties,  and  of  the  signatures  of  the  plenipotentiaries,  in  the  counter- 
parts of  the  same  treaty  so  that  each  party  is  first  named,  and  its  pleni- 
potentiary signs  first  in  tlie  copy  possessed  and  published  by  itself. 
Tbis  practice  has  not  been  invariably  followed  in  the  treaties  to  which 
the  United  States  have  been  parties,  and  having  been  omitted  in  the 
treaty  of  Ghent,  it  became  a  subject  of  instructions  from  this  Depart- 
ment to  your  predecessor.  The  arrangement  was  therefore  insisted  on 
at  the  drawing  up  and  signing  of  the  commercial  convention  of  July 
3,  1815,  and  was  ultimately  acquiesced  in  on  the  part  of  the  British 
Government,  as  conformable  to  established  u.sagc.  You  "will  consider 
it  as  a  standing  instruction  to  adhere  to  it,  in  the  case  of  any  treaty 
or  convention  that  may  be  signed  by  you." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Rush,  Nov.  16,  1817.    MSS.  Inst.,  Ministers. 

"I  deem  it  to  be  my  duty  to  state  that  the  recall  of  Mr.  Trist,  as  com- 
missioner of  the  United  States,  of  which  Congress  was  informed  in  my 
annual  message,  "was  dictated  by  a  belief  that  his  continued  presence 
2 


CHAP.  VI. J  NEGOTIATION.  [§  130. 

with  the  Army  could  be  j)roductive  of  no  good,  but  might  do  uiuch 
harm  by  encouraging  the  delusive  hopes  and  false  impressions  of  the 
Mexicans,  and  that  his  recall  would  satisfy  Mexico  that  the  United 
States  had  no  terms  of  peace  more  favorable  to  offer.  Directions  were 
given  that  any  propositions  for  peace  which  Mexico  might  make  should 
be  received  and  transmitted,  by  the  commanding  general  of  our  forces, 
to  the  IJLited  States. 

"It  was  not  expected  that  Mr.  Trist  would  remain  in  Mexico,  or  con- 
tinue in  the  exercise  of  the  functions  of  the  office  of  commissioner,  after 
he  received  his  letter  of  recall.  He  has,  however,  done  so,  and  the 
plenipotentiaries  of  the  Government  of  Mexico,  with  a  knowledge  of  the 
fact,  have  concluded  with  him  this  treaty.  I  have  examined  it  with  a 
full  sense  of  the  extraneous  circumstances  attending  its  conclusion  and 
signature,  which  might  be  objected  to;  but,  conforming  as  it  does,  sub- 
stantially, on  the  main  questions  of  boundary  and  indemnity,  to  the 
terms  which  our  commissioner,  when  he  left  the  United  States  in  April 
last,  was  authorized  to  offer,  and  animated  as  I  am  by  the  spirit  which 
has  governed  all  my  official  conduct  towards  Mexico,  I  have  felt  it  to 
be  my  duty  to  submit  it  to  the  Senate  for  their  consideration,  with  a 
view  to  its  ratification." 

President  Polk,  Mexican  Treaty  Message,  Feb.  22,  1848. 
As  to  criticisms  on  this  negotiation,  see  infra,  $  154. 

"  Until  about  the  beginning  of  the  eighteenth  century  treaties  be- 
tween European  powers  were  generally  written  in  Latiu,  but  it  has  since 
been  customary  for  negotiators  of  countries  which  do  not  use  the  same 
language  to  prepare  their  treaties  in  both  languages  ;  for  instance,  in 
the  case  of  an  American  negotiating  with  a  German  plenipotentiary, 
the  English  version  would  appear  side  by  side,  article  for  article,  with 
the  German  ;  and  in  Spain,  or  in  the  Spanish-American  Eepublics,  the 
English  and  Spanish  languages  would  be  used  in  the  same  way.  Treat- 
ies between  the  United  States  and  the  British  Government  have  been 
signed  in  the  English  language  only.  Our  treaties  with  Russia  are  an 
exception  to  the  general  rule,  most  of  them  being  written  in  French 
and  English. 

"  The  French  language  is  much  used  in  diplomatic  and  social  inter- 
course in  Europe  between  persons  of  different  nationalities.  It  is  there 
generally  so  far  regarded  the  common  medium  of  communication  that 
it  is  the  exception  to  the  rule  to  find  a  person  in  polite  society  who  is 
not  able  to  converse  in  and  write  it." 

Mr.  Fi.sL,  Sec.  of  State,  to  Miss  Fraser,  Nov.  18,  1874.     MSS.  Doiu.  Let. 

"The  effect  of  adhesion  to  a  treaty  is  to  make  the  adhering  power 
as  much  a  party  to  all  its  provisions  and  responsibilities  as  though  a 
like  treaty  had  been  concluded  ad  hoc  between  it  and  the  other  signa- 
tory. For  exami)I(',  wcrelhc.  United  States  to  'adiiere'to  the  proposed 
treaty  between  Great  IJiitain  and  Zanzibar  and  effect  siu-li  'adhesion' 

.'3 


§  130.]  TREATIES.  [chap.  VI. 

ia  such  a  way  as  to  iuternationally  bind  themselves  and  Zanzibar,  each 
and  every  provision  wouhl  necessarily  be  enforceable  as  between  the 
United  States  and  Zanzibar,  iuclnding  the  assumption  on  the  part  of 
the  United  States  of  control  over  certain  subjects  of  future  arrangement 
between  Zanzibar  and  any  third  power." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  von  Alveuslcbcu.  May  G,  1860.     MSS.  Notes, 
(ifini.     Same  to  Sir  L.  West,  May  0,  1885.    MSS.  Notes,  Gr.  Brit. 

Commissioners  to  execute  a  treaty  must  all  agree  to  the  same,  and 
subscribe  their  names  and  attach  their  seals  thereto. 

1  Op.,  GG,  Lee,  17%. 

As  to  presents  to  niiuisters  negotiating  treaties,  see  supra,  ^  110. 

"  Whenever  a  diplomatic  agent  of  the  United  States  is  intrusted  with 
the  negotiation  of  a  treaty  or  convention,  a  full  power  will  be  given  to 
him. 

''In  case  of  urgent  need  a  written  international  compact  between  a 
diplomatic  agent  and  a  foreign  Government  may  be  made  in  the  absence 
of  specitic  instructions  or  powers.  In  such  cases  it  is  preferable  to  give 
to  the  instrument  the  form  of  a  simple  protocol,  and  it  should  be  ex- 
pressly stated  in  the  instrument  that  it  is  signed  subject  to  the  approval 
of  the  signer's  Government. 

"The  diplomatic  agents  of  the  United  States  will  adhere  to  the  prin- 
ciple of  the  ^alternat,''  in  all  cases  where  they  shall  have  occasion  to  sign 
any  treaty,  convention,  or  other  document  with  the  plenipotentiaries  of 
other  powers. 

"For  the  convenience  of  diplomatic  agents  who  may  be  instructed  or 
empowered  to  negotiate  and  sign  a  treaty  of  convention  with  the  Gov- 
ernment of  a  country  where  another  language  than  English  is  officially 
employed,  the  following  explanatory  regulations  touching  the  clerical 
preparation  of  such  instrument  are  given: 

"A.  The  texts  of  the  two  languages  should  be  neatly  engrossed  in 
parallel  columns  on  the  same  sheet,  if  possible,  or  on  opi)Osite  pages  of 
the  same  document.  Two  separate  copies  in  different  languages  are  not 
advisable,  although  this  expedient  is  sometimes  resorted  to  in  the  East- 
ern countries. 

"B.  In  the  copy  to  be  retained  by  the  diplomatic  agent  and  trans- 
mitted to  this  Government,  the  United  States  is  named  first,  in  all 
l)laces  where  the  alternative  change  may  conveniently  be  made  through- 
out both  texts.  Conversely  in  both  texts  throughout  the  treaty  the 
foreign  Government  is  first  named  in  the  copy  which  it  retains. 

"C.  The  language  of  the  Government  which  is  to  retain  and  publish 
the  convention  should  always  occupy  the  left-hand  place  in  the  copy  to 
be  delivered  to  it. 

"D.  The  utmost  care  should  be  taken  to  insure  the  substantial  equiv- 
alence of  sense  of  the  two  texts,  so  as  to  exclude  any  erroneous  effect 
due  to  translation.  While  a  strictly  literal  translation  is  often  harsh, 
and  sometimes  impossible,  the  absolute  identity  of  the  idea  conveyed  is 
indispensable.  To  this  end  the  punctuation  of  the  two  texts  should 
also  be  attentively  scrutinized  and  brought  into  substantial  conformity. 

"E.  Inasmuch  as  in  this  country  the  pleasure  of  the  Senate  must  bo 
awaited  before  the  treaty  can  be  ratified,  and  as  delays  may  accordingly 
supervene,  it  is  the  preference  of  this  Government  tliat  it  be  provided 
4 


CHAP.  VI.]  RATIFICATION   AND    APPROVAL.  [§  I'^l- 

that  the  ratilicatioii  and  the  exchauge  of  ratifications  sball  be  effected 
'as  soon  as  possible'  rather  than  within  a  specified  time." 

Printed  Pers.  Inst.,  Dip.  Agents,  188G. 

Coercion,  while  invalidating  a  contract  produced  by  it,  does  not  in- 
validate a  treaty  so  produced.  Thus  there  can  be  no  question  of  the 
binding  force  of  the  treaty  which  followed  theFrench-German  war  which 
led  to  the  dethronement  of  Xapoleou  III,  though  its  terms  were  as- 
sented to  under  coercion.  The  same  may  be  said  of  the  consent  of  France 
to  the  settlement  enforced  by  the  allies  after  Waterloo,  and  so  the  treaty 
by  which  Mexico  ceded  California  and  the  adjacent  territory  to  the 
United  States.  On  the  other  hand  a  treaty  produced  by  material  fraud 
or  by  i)hysical  force  applied  to  the  negotiator,  may  be  repudiated. 

See  TVoolsey  Int.  Law,  ^  100. 

"It  is  commonly  laid  down  that  neither  the  plea  of  'duress'  nor  that 
of  •laesio  enormis^  (a  degree  of  hardship  that  is  so  plain  and  gross  that 
the  sufi'erer  cannot  be  supposed  to  have  contemplated  what  he  was  un- 
dertaking)— pleas  recognized,  directly  or  circuitously,  in  one  form  or 
another,  by  municipal  law,  both  ancient  and  modern,  can  be  allowed  to 
justify  the  non-fulfillment  of  a  treaty.  To  cases  of  personal  duress  this, 
of  course,  does  not  apply.  Any  force  or  menace  ap])lied  to  the  person 
of  a  negotiator  is  on  the  face  of  it  unlawful,  because  a  consent  wrung 
from  the  pain  or  terror  of  an  individual  cannot  witbin  any  pretense  of 
reason  be  regarded  as  the  consent  of  the  nation.  The  cession,  there- 
fore, extorted  from  Frederick  the  Seventh,  at  Bayonne,  the  engagements 
obtained  a  few  years  back  from  Mr.  Eden  by  the  chiefs  of  Bhootan,  were 
void.  They  were  beyond  the  reason,  and  therefore  beyond  the  scope, 
of  the  rule.  But  the  intolerable  hardships  and  sutferings  inflicted  by 
France  on  Prussia  after  the  battle  of  Jena  did  not  invalidate  the  peace 
of  Tilsit,  or  the  series  of  subsequent  conventions  which  bound  tlie  con- 
quered but  unsubdued  nation  in  fetters  of  steel." 

Bernard  on  Diplomacy,  185. 

II.— RATIFICATION  AND  ArmOVAL. 
(1)  As  TO  TREATY-MAKING  rOWER. 

§  131. 

"It  is  said  to  be  the  general  understanding  and  practice  of  nations, 
as  a  check  on  the  mistakes  and  indiscretions  of  ministers  or  commis- 
sioners, not  to  consider  any  treaty,  negotiated  and  signed  by  such 
oSicers,  as  final  and  conclusive,  until  ratified  by  the  sovereign  or  Gov- 
ernment from  whom  they  derive  their  powers.  This  practice  has  been 
adopted  by  the  United  States  respecting  their  treaties  with  European 
nations,  and  I  am  inclined  to  think  it  would  be  advisable  to  observe  it 
in  the  conduct  of  our  treaties  with  the  Indians  ;  for,  though  such  treaties, 
being,  on  (heir  part,  made  by  their  chiefs  or  rulers,  need  not  be  ratified 
by  them,  yet,  being  formed  on  our  part  by  the  agency  of  subordinate 
officers,  it  seems  to  me  both  prudent  and  leasonable  that  their  acts 
should  not  be  binding  on  tlie  nation,  until  api)roved  and  ratified  by  the 
GovernTiient.     It  strikes  me  tliat  tin's  )>(»int  sliould  be  well  considered 


§  131.]  TREATIES.  [CHAr.  VI. 

luitl  yettk'il,  so  that  our  iiatiuual  proceedings  in  tLis  respect  may  l)ecoiuo 
unifonu,  auil  be  directed  by  fixed  and  stable  principles." 

Picsiilout  Washington,  Special  Message,  Sept.  17,  1780. 

The  propriety  of  a  partial  approval  of  a  treaty  by  the  Senate  was 
doubted  by  tbe  British  Government  in  1S04. 

See  Mr.  Mouroc,  minister  to   Euglaud,  to  the  See.  of  State,  June  3, 1804.     MSS. 

Dept.  of  State.     3  Am.  St.  Tap.  (For.  Rel.),  93.    As  to  these  negotiations, 

see  infra,  $  IGOh. 
As  to  the  motlifications  by  the  Senate  of  the  convention  with  France  of  1800. 

see  infra,  ^  148a. 
As  to  action  of  Senate  on  Dallas-Chircndon  Treaty,  sec  infra,  ^  loOf. 

Mr.  Jeflersou's  explanation  of  his  non-acceptance  of  the  treaty  nego- 
tiated by  Messrs.  Monroe  andPinkney  with  Great  Britain  is  as  follows: 
*' You  heard  in  due  time  from  London  of  the  signature  of  a  treaty  there 
between  Great  Britain  and  the  United  States.  By  a  letter  we  received 
in  January  from  our  ministers  at  London  we  found  they  were  making 
uj)  their  minds  to  sign  a  treaty  in  which  no  provision  was  made  against 
the  impressment  of  our  seamen,  contenting  themselves  with  a  note 
received  in  the  course  of  their  correspondence  from  the  Britisb  nego- 
tiator, assuring  them  of  the  discretion  with  which  impressment  should 
be  conducted,  which  could  be  construed  into  a  covenant  only  by  infer- 
ences, against  which  its  omission  in  the  treatj"  was  a  strong  inference, 
and  in  its  terms  totally  unsatisfactor5\  By  a  letter  of  February  the  3d 
they  were  immediately  informed  that  no  treaty  not  containing  a  satis- 
factory article  on  that  head  would  be  ratified,  and  desiring  them  to 
resume  the  negotiations  on  that  point.  The  treaty  having  come  to  us 
actually  in  the  inadmissible  shape  apprehended,  we,  of  course,  hold  it 
up  until  we  know  the  result  of  the  constructions  of  February  the  3d.  I 
have  but  little  expectation  that  the  British  Government  will  retire  from 
their  habitual  wrongs  in  the  impressment  of  our  seamen,  and  am  certain 
that  without  that  we  will  never  tie  up  our  hands  by  treaty  from  the 
right  of  passing  a  non-importation  or  non-intercourse  act,  to  make  it 
her  interest  to  become  just." 

Mr.  Jefferson,  President,  to  Mr.  Bowdoiu,  April  2,  1807.     5  JefF.  \yorks,  G4.     See 
further,  infra,  ^  150&.     As  to  Mr.  Monroe  as  a  negotiator,  see  supra,  ^  107. 

To  Mr.  Monroe  Mr.  Jefferson  afterwards  wrote  as  follows :  "  The  treaty 
was  comnutnicated  to  us  by  Mr.  Erskine  on  the  day  Congress  was  to 
rise.  Two  of  the  Senators  inquired  of  me  in  the  evening  whether  it  was 
my  intention  to  detain  them  on  account  of  the  treatj'.  My  answer  was 
'that  it  was  not;  that  the  treaty  containing  no  provision  against  the 
impressment  of  our  seamen,  and  being  accompanied  by  a  kind  of  protes- 
tation of  the  Briti.sh  ministers,  which  would  leave  that  Government  free 
to  consider  it  as  a  treaty  or  no  treaty,  according  to  their  convenience, 
I  should  not  give  them  the  trouble  of  deliberating  on  it.'  This  was  sub- 
stantially and  almost  verbally  what  I  said  whenever  spoken  to  about  it, 
C 


CHAP,  vl]  ratification  and  approval.  [§131. 

and  I  never  failed,  when  the  occasion  would  admit  of  it,  to  justify  your- 
self and  Mr.  Pinkney  by  expressing  my  conviction  that  it  was  all 
that  could  be  obtained  from  the  British  Government;  that  you  had  told 
their  commissioners  that  your  Government  could  not  be  pledged  to  ratify 
because  it  was  contrary  to  your  instructions;  of  course,  that  it  should  be 
considered  but  as  a  project,  and  in  this  light  I  stated  it  publicly  in  my 
message  to  Congress  on  the  opening  of  the  session." 

President  JeflFerson  to  Mr.  Monroe,  Mar.  10, 1808,  5  Jeff.  Works,  254.  See  infra, 
$  1506. 

That  Mr.  Monroe  was  greatly  disappointed  and  hurt  at  this  action  of 
the  Administration  is  shown  by  the  Monroe  Papers,  on  deposit  in  the 
Department  of  State. 

For  a  detailed  account  of  the  Mouroe-Pinkney  negotiations,  see  infra,  §  1506; 
and  as  to  Mr.  Monroe,  see  supra,  $  107;  infra,  §  1506. 

"  It  has  sometimes  been  assumed  that  the  President's  rejection  of  the 
treaty  formed  by  Monroe  and  Pinkney  was  the  origin  of  all  the  hostile 
feeling  in  England  against  us  and  the  foundation  of  the  war  of  1812. 
Canning  did  afterwards  complain  that  the  President  had  no  right  to 
approve  what  he  pleased  and  condemn  what  he  pleased  in  the  treaty, 
and  instruct  the  American  ministers  to  attempt  to  procure  amendments 
in  the  latter  points  and  consider  the  former  settled.  He  required  that 
the  whole  subject  be  reopened  from  the  beginning,  if  any  part  of  it  was 
reopened.  But  in  glancing  through  Monroe's  correspondence  until  he 
asked  his  audience  of  leave,  we  do  not  observe  an  intimation  that  the 
rejection  of  the  treaty  was  complained  of  or  treated  as  an  offensive,  and 
much  less  a  hostile,  act." 

3  Randall,  Life  of  Jefferson,  235.     See  infra,  $  1506. 

"When  one  Government  has  been  solemnly  pledged  to  another  in  a 
mutual  agreement  by  its  acknowledged  and  competent  agent,  and  re- 
fuses to  fulfill  the  pledge,  it  is  perfectly  clear  that  it  owes  it,  both  to 
itself  and  to  the  other  party,  to  accompany  its  refusal  with  a  formal 
and  frank  disclosure  of  sufficient  reasons  for  a  stej)  which,  without  such 
reasons,  must  deeply  injure  its  own  character,  as  well  as  the  rights  of 
the  party  confiding  in  its  good  faith." 

Mr.  R.  Smith,  Sec.  of  State,  to  Mr.  Jackson,  Oct.  19,  1809.  MSS.  Notes,  For. 
Leg.  3  Am.  St.  Pap.  (For.  Rel.),  311.  As  to  the  negotiations  with  Ers- 
kine  and  Jackson,  see  supra,  $  107 ;  infra,  $  lo06. 

"These  facts  will,  it  is  presumed,  satisfy  every  impartial  mind  that 
the  Government  of  Spain  has  no  justifiable  cause  for  declining  to  ratify 
the  treaty.  A  treaty  concluded  in  conformity  with  instructions  is  oldig- 
atory  in  good  faith  in  all  its  stipulations,  accoidiiig  to  the  true  intent 
and  meaning  of  the  parties.  Each  party  is  bound  to  ratify  it.  If  either 
could  set  aside  without  the  consent  of  the  other  there  would  no  longer 
be  any  rules  applicable   to  such  transactions  between  nations.     By 

7 


§  131.]  TREATIES.  [chap.  VI. 

this  proceeding  the  Govorumeut  of  Spain  has  roiuleiod  to  tbo  United 
States  a  new  and  very  serious  injury.  It  Las  been  stated  that  a  minis- 
ter would  be  sent  to  ask  certain  explanations  of  this  Government,  but 
if  such  were  desired,  why  were  they  not  asked  within  the  time  limited 
for  the  ratification  ?  Is  it  contemplated  to  open  a  new  negotiation 
respecting  any  of  the  articles  or  conditions  of  the  treaty  ?  If  that  M'ere 
done,  to  what  consequences  might  it  not  lead?  At  what  time  and  in 
what  manner  would  a  new  negotiation  terminate?  By  this  proceeding 
Spain  has  formed  a  relation  between  the  two  countries  which  will  jus- 
tify any  measures  on  the  part  of  the  United  States  which  a  strong 
sense  of  injury  and  a  proper  regard  for  the  rights  and  interests  of  the 
nation  may  dictate." 

President  Monroe,  Third  Annual  Message,  1810.    As  to  the  negotiations  to  which 
this  message  refers,  see  in/ra,  ^  IGl. 

"The  obligation  of  the  King  of  Spain,  therefore,  in  honor  and  in  jus- 
tice to  ratify  the  treaty  signed  by  his  minister  is  as  perfect  and  unqual- 
ified as  his  royal  promise  in  the  power,  and  it  gives  to  the  United  States 
the  right  equally  perfect  to  compel  the  performance  of  that  promise." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Forsyth,  Aug,  18, 1819.    MSS.  Inst.,  Ministers. 

"  I  have  the  honor  to  state  that  the  President  considers  the  treaty  of 
22d  February  last  as  obligatory  upon  the  honor  and  good  faith  of  Spain ; 
not  as  a  perfect  treaty  (ratification  being  an  essential  formality  to  that), 
but  as  a  compact  which  Spain  was  bound  to  ratify — as  an  adjustment 
of  the  differences  between  the  two  nations,  which  the  King  of  Spain  by 
his  full  power  to  his  minister  has  solemnly  promised  to  approve,  ratify, 
and  fulfill.  This  adjustment  is  assumed  as  the  measure  of  what  theUnited 
States  had  a  right  to  obtain  from  Spain,  from  the  signature  of  the  treaty. 
The  principle  may  be  illustrated  by  reference  to  municipal  law,  relative 
to  transactions  between  individuals.  The  difference  between  the  treaty 
unratified  and  ratified,  may  be  likened  to  the  difference  between  a  cov- 
enant to  convey  lands  and  the  deed  of  conveyance  itself.  Upon  a  breach 
of  the  covenant  to  convey,  courts  of  equitj'  decree  that  the  party  has 
broken  his  covenant,  shall  convey,  and  further  shall  make  good  to  the 
other  party  all  the  damage  which  he  has  sustained  by  the  breach  of  cov- 
enant. 

"As  there  is  no  court  of  chancery  between  nations,  their  diflerences 
can  be  settled  only  by  agreement  or  by  force.  The  resort  to  force  is 
justifiable  only  when  justice  cannot  be  obtained  by  negotiation — and 
the  resort  to  force  is  limited  to  the  attainment  of  justice.  The  wrong 
received  marks  the  boundaries  to  the  right  to  be  obtained. 

"The  King  of  Spain  was  bound  to  ratify  the  treaty;  bound  by  the 
principles  of  the  law  of  nations  applicable  to  the  case;  and  further  bound 
by  the  solemn  promise  in  the  full  power.     He  refusing  to  perform  this 

8 


CHAP.  VI.]  RATIFICATION   AND   APPROVAL.  [§  131. 

l)romise  and  obligatiou,  the  United  States  have  a  perfect  right  to  do 
what  a  court  of  chancery  would  do  in  a  transaction  of  a  similar  char- 
acter between  individuals  to  compel  the  performance  of  the  engage- 
ment as  far  as  compulsion  can  accomplish  it,  and  to  indemnify  them- 
selves for  all  the  damages  and  charges  incident  to  the  necessity  of  using 
compulsion,  and  they  are  further  entitled  to  indemnity  for  all  the  ex- 
penses and  damages  which  they  may  sustain  by  consequence  of  the 
refusal  of  Spain  to  ratify.  The  refusal  to  ratify  gives  them  the  same 
right  to  do  justice  to  themselves  as  the  refusal  to  fulfill  would  have  given 
them  if  Spain  had  ratified  and  then  ordered  the  governor  of  Florida 
not  to  deliver  over  the  province." 

Mr.  Adams,  Sec.  of  State,  jto  Mr.  Lowndes,  Dec.  16, 1819.  MSS.  Report  Book.  See 
in/m,  5  161,  #. 

"  It  is  shown  by  the  law  of  nature  that  he  who  has  made  a  promise 
to  any  one  has  conferred  upon  him  a  true  right  to  require  the  thing 
promised ;  and  that,  consequently,  not  to  keep  a  perfect  promise  is  to 
violate  the  right  of  another,  and  is  as  manifest  an  injustice  as  that  of 
depriving  a  person  of  his  property.  All  the  tranquillity,  the  happi- 
ness and  security  of  the  human  race  rests  on  justice,  on  the  obligation 
of  paying  a  regard  to  the  rights  of  others.  The  respect  of  others  for 
our  rights  of  domain  and  property  constitutes  the  security  of  our  actual 
possessions.  The  faith  of  promises  is  our  security  for  the  things  that 
cannot  be  delivered  or  executed  on  the  spot.  There  would  be  no  more 
security,  no  longer  any  commerce  between  mankind,  did  they  not  be- 
lieve themselves  obliged  to  preserve  their  faith  and  keep  their  word. 
This  obligation  is  then  as  necessary  as  it  is  natural  and  indubitable  be- 
tween the  nations  that  live  together  in  a  state  of  nature  and  acknowl- 
edge no  superior  upon  earth  to  maintain  order  and  keep  peace  in  their 
society.  Nations  and  their  conductors  ought  then  to  keep  their  prom- 
ises and  their  treaties  inviolable.  This  great  truth,  though  too  often 
neglected  in  practice,  is  generally  acknowledged  by  all  nations."  (Vattel, 
liv.  2,  ch.  12,  §  163.) 

Adopted  by  Mr.  Adams,  Sec.  of  State,  iu  his  letter  to  Mr.  Vives,  May  6,  1820. 
MSS.  Notes,  For.  Leg.  Mr.  Adams  Sec.  of  State  to  Mr.  Forsyth,  Aug.  18, 
1819.    MSS.  Inst.,  Ministers. 

"Everything  that  has  been  stipulated  by  an  agent  in  conformity 
with  his  full  powers  ought  to  become  obligatory  for  the  state  from  the 
moment  of  signing,  without  ever  waiting  for  the  ratification.  Uowever, 
not  to  expose  a  state  to  the  errors  of  a  single  person,  it  is  now  become 
a  general  maxim  that  public  conv^eutious  do  not  become  obligatory 
until  ratified.  The  motives  of  this  custom  clearly  proves  that  the  rat- 
ification can  never  be  refused  with  justice,  except  when  ho  who  is 
charged  with  the  negotiation,  keeping  within  the  extent  of  his  public 
full  powers  has  gone  beyond  his  secret  instructions  and  consequently 

1) 


\^  131.]  TREATIES.  [chap.  Yt. 

icudered  liiinself  liable  to  puuisbmeut ;  or  when  the  other  party  refuses 
to  ratify."     (Martens,  liv.  2,  ch.  3,  §  31.) 

Adopted  by  Mr.  Adams,  Sec.  of  State,  iu  letter  to  Mr.  Vivcs,  May  8,  1820. 

MSS.  Notes,  For.  Log.;  also  by  Mr.  Adams  to  Mr.  Forsytb,  Aug.  18,  1819, 

ut supra. 

"  The  refusal  to  ratify  a  second  treaty  within  the  time  stipulated,  and 
then  to  send  a  minister  to  demand  new  conditions,  the  sanction  of 
^vhich  Nvas  to  depend  upon  the  Government  of  IMadrid  without  his  be- 
coming responsible  for  it,  was  an  occurrence  with  which  I  have  known 
no  parallel." 

Mr,  Mouroo,  rresideut,  to  Mr.  Gallatin,  May  20,  1820.  2  Gallatin's  Writings,  140. 
See  infra,  161a. 

"  It  may  be  replied  that  in  all  cases  of  a  treaty  thus  negotiated,  the 
other  contracting"  party  being  under  no  obligation  to  ratify  the  com- 
pact before  it  shall  have  been  ascertained  whether,  and  in  what  man- 
ner, it  has  been  disposed  of  in  the  United  States,  its  ratification  can  in 
no  case  be  rendered  unavailing  by  the  proceedings  of  the  Government 
of  the  United  States  upon  the  treaty;  and  tliat  every  Government  con- 
tracting with  the  United  States,  and  with  a  full  knowledge  that  all  their 
treaties  until  sanctioned  by  the  constitutional  majority  of  their  Senate 
are,  and  must  be  considered,  as  merely  inchoate  and  not  consummated 
compacts,  is  entirely  free  to  withhold  its  own  ratification  until  it  shall 
have  knowledge  of  the  ratification  on  their  part.  In  the  full  powers  of 
European  Governments  to  their  ministers,  the  sovereign  usually  prom- 
ises to  ratify  that  which  his  minister  shall  conclude  in  his  name ;  and 
yet  if  the  minister  transcends  his  instructions,  though  not  known  to 
the  other  party,  the  sovereign  is  not  held  bound  to  ratify  his  engage- 
ments. Of  this  principle  Great  Britain  has  once  availed  herself  in  her 
negotiations  with  the  United  States.  But  the  full  powers  of  our  minis- 
ters abroad  are  necessarily  modified  by  the  provisions  of  our  Constitu- 
tion and  promise  the  ratification  of  treaties  signed  by  them,  only  in  the 
event  of  their  receiving  the  constitutional  sanction  of  our  Government." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Eush,  Nov.  12,  1824.    MSS.  Inst.,  Ministers. 

President  J.  Q.  Adams's  message  of  Dec.  27,  1825,  vrith  correspondence  explan- 
atory of  the  action  of  the  Senate  in  modifying  the  slave  trade  conven- 
tion of  tbat  year,  is  given  in  House  Doc.  414,  19tb  Cong.,  Ist  sess.  5 
Am.  St.  Pap.  (For.  Eel.),  782. 

"  The  Government  of  His  Britannic  Majesty  is  well  acquainted  with 
the  provision  of  the  Constitution  of  the  United  States  by  which  the 
Senate  is  a  component  part  of  the  treaty-making  power;  and  that  the 
consent  and  advice  of  that  branch  of  Congress  are  indispensable  in  the 
formation  of  all  treaties.  According  to  the  practice  of  this  Government, 
the  Senate  is  not  ordinarily  consulted  in  the  initiatory  state  of  a  negoti- 
ation, but  its  consent  and  advice  are  only  invoked,  after  a  treaty  is  con- 
cluded, under  the  direction  of  tlie  President,  and  submitted  to  its  con- 
sideration. Each  of  the  two  branches  of  the  treaty-making  authority 
10 


CHAP.  VI.]  RATIFICATION    AND    APPROVAL.  [§  131. 

is  iiidepcmleut  of  the  other,  whilst  both  are  respousiblc  to  the  States 
and  to  the  people,  the  common  sources  of  their  respective  powers.  It 
results,  from  this  organization,  that,  in  the  progress  of  the  Government, 
instances  may  sometimes  occur  of  a  difference  of  opinion  between  the 
Senate  and  the  Executive  as  to  the  expediency  of  a  projected  treaty, 
of  which  the  rejection  of  the  Colombian  convention  affords  an  example. 
The  people  of  the  United  States  have  justly  considered  that,  if  there 
be  any  inconveniences  in  this  arrangement  of  their  executive  powers, 
those  inconveniences  are  more  than  counterbalanced  by  the  greater 
security  of  their  interests,  which  is  effected  by  the  mutual  checks  which 
are  thus  interposed.  But  it  is  not  believed  that  there  are  any  incon- 
veniences to  foreign  powers  of  which  they  can  with  propriety  complain. 
To  give  validitj^  to  any  treaty,  the  consent  of  the  contracting  parties  is 
necessary.  As  to  the  mode  by  which  that  consent  shall  be  expressed, 
it  must  necessarily  depend  with  each  upon  its  own  peculiar  constitu- 
tional arrangement.  All  that  can  be  rightly  demanded  in  treating  is 
to  know  the  contingencies  on  the  happening  of  which  that  consent  is  to 
be  regarded  as  suflBciently  tcstitied.  This  information  the  Government 
of  the  United  States  has  always  communicated  to  the  foreign  powers 
with  which  it  treats,  and  to  none  more  fully  than  to  the  United  King- 
dom of  Great  Britain  and  Ireland.  Xor  can  it  be  admitted  that  any 
just  cause  of  complaint  can  arise  out  of  the  rejection  by  one  party  of  a 
treaty  which  the  other  has  previously  ratified.  When  such  a  case  oc- 
curs, it  only  proves  that  the  consent  of  both,  according  to  the  constitu- 
tional i)recautions  which  have  been  provided  for  manifesting  that  con- 
sent, is  wanting  to  make  the  treaty  valid.  One  must  necessarily  precede 
the  other  in  the  act  of  ratification ;  and,  if  after  a  treaty  be  ratified  by 
one  party,  a  ratification  of  it  be  withheld  by  the  other,  it  merely  shows 
that  one  is,  and  the  other  is  not,  willing  to  come  under  the  obligations 
of  the  proposed  treaty. 

"  I  am  instructed  by  the  President  to  accompany  these  frank  and 
friendly  explanations  by  the  expression  of  his  sincere  regret  that,  from 
the  views  which  are  entertained  by  the  Senate  of  the  United  States,  it 
would  seem  to  be  unnecessary  and  inexpedient  any  longer  to  continue 
the  negotiation  respecting  the  slave  convention  with  any  hope  that  it 
can  be  made  to  assume  a  form  satisfactory  to  both  parties.  The  Gov- 
ernment of  His  Britannic  Majesty  insists,  as  an  indispensable  condi- 
tion, that  the  regulated  right  of  search,  proposed  in  the  convention, 
should  be  extended  to  the  American  coasts  as  well  as  to  those  of  Africa 
and  of  the  West  Indies.  The  Senate,  ev^n  with  the  omission  of  America, 
thinks  it  unadvisable  to  ratify  the  Colombian  convention,  and  it  is, 
therefore,  clearly  to  bO  inferred  that  a  convention  with  His  Britannic 
Majesty,  with  a  similar  omission,  would  not  receive  the  approbation  of 
the  Senaie.  The  decision  of  the  Senate  shows  that  it  has  made  up  its 
deliberate  judgment  without  any  regard  to  the  relative  state  of  the  mili- 
tary or  commercial  marine,  for  all  the  considerations  Ixilonging  to  n 

11 


§  131.]  TREATIES.  [chap.  VI. 

view  of  that  subject  would  have  urged  the  Senate  to  an  acceptance  of 
the  Colombian  convention.  It  is  Loped,  therefore,  that  His  Britannic 
Majesty  caunot  fail  to  perceive  that  the  Senate  lias  been  guided  by  no 
unfriendly  feeling  towards  Great  Britain." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Adtlington,  Apr.  G,  1825.    MSS.  Notes,  For.  Leg. 
f)  Am.  St,  Pap.  (For.  Rcl.),  783. 

Mere  signing,  by  the  Executive,  of  a  treaty  containing  a  clause  for  its 
ratification,  in  the  usual  form,  is  no  guarantee  that  the  treaty  should  be 
ratilied,  nor  does  a  payment  of  an  installment  of  money  by  the  Execu- 
tive as  a  preliminary  payment  under  such  a  treaty  which  provides  for 
a  lease  of  foreign  property,  bind  the  Government  to  future  payments. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Delmoute,  Feb.  19,  ISdO.     MSS.  Notes,  Domin- 
ican Republic. 

^fatters  exclusively  of  Executive  discretion  or  of  Executive  construc- 
tion may  be  settled  by  ]>rotocols  which,  as  only  attecting  Executive 
action,  need  not  be  submitted  to  the  Senate.  As  an  example  of  pro- 
tocols of  this  class  may  be  noticed  the  "protocol  of  a  conference  held  at 
^ladrid,  on  the  iL'tli  of  January,  1877,  between  the  lion.  Caleb  Gushing, 
minister  plenipotentiary  of  the  United  States  of  America,  and  his  ex- 
cellency Senor  Don  Fernando  Calderon  y  Collantes,  minister  of  state 
of  IJis  Majesty  the  King  of  Si)ain."  Treaties  and  conventions,  187(J. 
This  protocol  is  given,  infra,  §  230. 

As  to  protocolj>,  see  App.,  vol.  iii,  ^  1:51.     See,  also,  infra,  $  2-21. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  22d 
ultimo,  written  from  Shelter  Island,  Xew  York,  in  relation  to  the  ex- 
change of  the  ratification  of  the  consular  convention  between  the 
United  States  and  Belgium,  signed  by  Mr.  Delfosse  and  myself  on  the 
9th  of  ^Nlarch  last,  wherein  you  make  special  reference  to  the  action  of 
the  Senate  of  the  United  States  in  qualifying  its  approval  of  that  instru- 
ment by  suppressing  the  word  'alone'  in  the  sixteenth  line  of  the  Xllth 
article,  and  at  the  instance  of  your  Government  request  to  be  informed 
of  the  motives  for  the  omission  of  that  word,  which  is  found  in  the  pre- 
vious convention  of  18G8.  You  also  desire,  if  possible,  to  be  furnished 
■with  the  minutes  of  the  debate  which  took  place  in  the  Senate  respect- 
ing this  change  in  the  text  of  the  convention. 

"In  reply  I  hasten  to  inform  you  that,  in  view  of  the  independent  and 
coordinate  function  of  the  Senate  of  the  United  States,  under  the  Con- 
stitution, in  the  completion  of  treaties,  the  proceedings  of  that  high 
body  in  executive  session  are  held  under  the  seal  of  secresy,  and  the 
results  alone  of  its  deliberations  are  communicated  to  the  executive 
branch  of  the  Government.  Ileuce  my  inability,  ■which  I  regret,  to  com- 
municate to  you  the  information  you  desire.  To  understand,  however, 
the  motive  for  the  omission  of  the  word  'alone'  from  the  Xllth  article 
of  the  present  convention,  it  can  only  be  necessary  to  go  back  to  the 
like  article  of  the  previous  convention  of  18G8  and  examine  the  respect- 
ive contexts.  We  find  that  formerly  the  word  '  alone'  was  qualified  by 
the  addition  of  the  phrase,  '  without  the  exaction  of  any  oath  from  the 
12 


CHAP,  VI.]  EATIFICATION    AND    APPROVAL.  [S^  131. 

consular  officers,'  showing  that  no  formality  was  needed  save  the  written 
request,  without  other  support,  in  order  to  secure  the  return  of  desert- 
ers from  national  ships.  In  the  revised  convention,  among  other  modi- 
fications suggested  by  experience,  the  qualifying  clause  quoted  above 
was  omitted  as  redundant.  This  redundancy  extends  to  the  word  '  alone,' 
which,  besides  being  superfluous  to  the  sense  of  the  clause  where  it 
occurs,  is,  in  the  English  text,  ambiguous.  It  will  be  perceived  that,  as 
it  now  stands,  it  may  mean  either  that  such  written  request,  so  supported, 
will  be  sufficient  warrant  for  surrender,  or  that  any  other  mode  of  pro- 
cedure is  inadmissible;  and  it  follows  that,  while  the  first  of  these  read- 
ings conforms  with  the  sense  of  the  French  equivalent,  either  interpre- 
tation is  redundant.  It  is,  therefore,  in  my  judgment,  apparent  that 
the  motive  for  the  action  of  the  Senate,  in  striking  out  the  word  'alone' 
from  the  clause  in  question,  is  found  in  the  desire  to  remove,  not  merely 
a  redundancy,  but  an  ambiguity  which  had  persisted,  unnoticed  before, 
from  the  previous  redaction  now  abandoned,  and  thus  to  leave  the  article 
free  from  all  obscurity  of  interpretation  as  to  the  sufficiency  or  necessity 
of  the  formality  prescribed. 

<'If,  as  I  take  it,  the  equivalent  word  'seule'  in  the  Belgian  text  is 
redundant  merely,  without  ambiguity,  the  question  of  its  retention  or 
suppression  may  very  properly  be  left  to  the  good  judgment  of  your 
Government.  Speaking  in  behalf  of  the  Government  of  the  United 
States,  I,  for  my  part,  cannot  perceive  that  in  either  case,  whether 
iseule'  be  retained  or  suppressed,  any  question  as  to  the  proper  inter- 
pretation of  the  clause  under  consideration  could  arise. 

"Trusting  that  the  explanation  thus  tendered  may  be  entirely  satis- 
factory to  your  Government,  and  remove  all  obstacle  to  the  speedy  ex- 
change of  the  ratifications  of  the  convention,  I  avail  myself  of  this 
opportunity  to  renew  to  you,  sir,  the  assurances  of  my  high  considera- 
tion." 

Mr.  Evarts,  Sec.  of  State  to  Mr.  Neyt,  Aug.  13,  18S0.    MSS.  Notes,  Belgium ;  For. 
Eel,,  1880.     See  infra,  $  148a. 

The  proclamation  of  a  ratified  treaty  can  be  made  only  by  the  Presi- 
dent of  the  United  States,  and  cannot  be  issued  by  the  legation  by 
whom  the  treaty  is  negotiated. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Angell,  Oct.  10,  1881.     MSS.  lust.,  China. 

A  ratification  by  one  sovereign  of  a  treaty  by  another  sovereign  to 
which,  when  signed  by  him,  he  attached  an  explanatory  note,  is  a  rati- 
fication of  the  explanation,  if  constitutionally  made. 
Clark  V.  Braden,  16  How.,  6:?5. 

"If,  then,  an  embassador,  in  conformity  with  a  full  ])owcr  received 
from  his  sovereign,  has  negotiated  and  signed  a  treaty,  is  the  sovereign 
justified  in  withliolding  his  ratification?  This  question  has  no  signili- 
cance  in  regard  to  states,  by  whose  form  of  government  the  engage- 
ments made  by  the  executive  with  foreign  powers  need  some  further 

13 


§  131.]  TREATIES.  [CHAr.  VI. 

sauction.  In  other  cases,  that  is  wherever  the  treaty-makiug  power  of 
the  sovereij,'!!  is  final,  the  older  writers  held  that  he  was  bound  by  the 
acts  of  his  ajxent,  if  tlio  latter  acted  within  the  full  ])ower  whicli  he  had 
received,  I'ven  though  he  had  <;()ne  contrary  to  secret  instructions.  lUit 
Byniccrslioek  dcfiMided  anothcv  opinion  wliich  is  now  the  received  one 
anion^'  the  text-writers,  and  whieh  Wheaton  has  advocated  at  large 
with  great  ability.  (Wheatou's  El.,  1>.  Ill,  2,§  o;  llynkershoek,  Quiest. 
J.  P.,  ir,  7  ;  de  Martens,  §  48.)  If  the  minister  has  conformed  at  once 
to  his  ostensible  jjowers  and  to  his  secret  instructions,  there  is  no  doubt 
that  in  ordinary  cases  it  would  be  bad  faith  in  the  sovereign  not  to  add 
his  ratilication.  13ut  if  the  minister  disobeys  or  transcends  his  instruc- 
tions, the  sovereign  may  refuse  his  sanction  to  the  treaty  without  bad 
faith  or  ground  of  complaint  on  the  other  side.  But  even  this  violation 
of  secret  instructions  would  be  no  valid  excuse  for  the  sovereign's 
refusing  to  accept  the  treaty,  if  he  should  have  given  i)ublic  credentials 
of  a  minute  and  spccilic  character  to  his  agent;  for  the  evident  inten- 
tion in  so  doing  would  be  to  convey  an  impression  to  the  other  party 
that  he  is  making  a  sincere  declaration  of  the  terms  on  which  he  is 
willing  to  treat. 

"  But  even  when  the  negotiator  has  followed  his  private  instructions, 
there  are  cases,  according  to  Dr.  Wheaton,  where  the  sovereign  may 
refuse  his  ratilication.  lie  may  do  so  when  the  motive  for  making  the 
treaty  was  an  error  in  regard  to  a  matter  of  fact,  or  when  the  treaty 
would  involve  an  injury  to  a  third  party,  or  when  there  is  a  phvsical 
impossibility  of  ful tilling  it,  or  when  such  a  change  of  circumstances 
takes  place  as  would  make  the  treaty  void  after  ratification. 

"All  question  would  be  removed,  if  in  the  full  i)ower  of  the  nego- 
tiators or  in  a  clause  of  the  treaty  itself,  it  were  declared  that  the  sov- 
ereign reserved  to  himself  the  power  of  giving  validity  to  the  treaty  by 
ratification.  This,  if  we  are  not  deceived,  is  now  very  generally  the 
case." 

■\Voolseyj  $  107. 

Some  publicists,  especially  Vattel,  consider  a  minister  as  invested 
with  the  power  of  a  mandatory,  and  hold  that  his  acts  are  subject  to 
the  same  rules  as  those  by  which  the  acts  of  mandatories  are  governed. 
Ilence  they  conclude  that  as  obligations  entered  into  by  a  mandatory 
within  the  scope  of  his  authority  bind  the  maudatant,  so  the  same  obli- 
gations entered  into  by  a  plenipotentiary  within  the  scope  of  his  au- 
thority bind  his  sovereign.  (Vattel,  droit  des  gens,  liv.  ii,  ch.  xii,  § 
156.  Kluber,  dr.  des  gens,  §  141;  Grotius,  de  jure  belli,  liv.  ii,  ch.  xi, 
§  12;  Pufendorf,  de  jure  naturae,  liv.  in,  ch.  ix,  §  2.)  *  *  *  This  the- 
ory has  been  rightly  contested  by  other  publicists,  among  whom  are 
Schmalz,  Byukersoek,  Pinheiro-Ferreira,  and  Wheaton,  and  more  re- 
cently by  Calvo.  (Bynkersoek,  Quest,  jur.  pub,,  liv.  ii,  ch.  vii;  Verge, 
note  sur  Martens,  §  48;  Schmalz,  dr.  dCvS  gens,  ch.  iii,  53;  Ortolan, 
Diplomatic  de  la  mer,  liv  i,  ch.  v;  Wheaton,  dr.  int.,  t.  i,  ch.  ii,  §  5; 
IletTter,  dr.  int.,  §  S5 ;  Calvo,  dr.  int.,  §  G97.)  These  authors  maintain 
that  a  mission  confided  by  a  sovereign  to  his  diplomatic  agents  for  the 
purpose  of  concluding  an  international  convention  on  a  specific  basis 
cannot  be  assimilated  to  a  mandate,  and  is  not,  therefore,  governed  by 
the  rules  by  which  mandates  arc  governed.  *  *  *  As  a  matter  of 
strict  law  we  cannot  accept  the  rule  of  Bluntschli  that  when  the  rep- 
resentatives of  a  state  have  received  the  necessary  power  to  definitely 
conclude  a  treaty,  the  signature  of  the  protocol  or  of  the  special  docu 

14 


CHAP.  VI.]  KATIFICATION    AND    APPROVAL.  [§  131a. 

ment  incorporatiug  the  treaty  definitely  binds  the  contracting  parties 
(Dr.  int.,  §  419),  or  that  of  Field  (Int.  Code,  §  192),  who  admits  the  ne- 
cessity of  ratification  only  in  cases  in  which  the  treaty  itself  expresses 
the  condition  of  ratification.  In  onr  opinion,  the  power  of  contracting 
a  binding  international  agreement  is  an  act  of  sovereignty  which  only 
the  person  invested  with  snch  sovereignty  is  capable  of  performing.  A 
minister  is  not  such  a  person  ;  he  is  only  a  negotiator.  Nevertheless, 
according  to  the  laws  of  diplomatic  comity  and  of  honor,  it  should  bo 
admitted  that  a  sovereign  ought  not,  unless  for  grave  public  reasons,  to 
refuse  to  ratify  a  treaty  signed  by  an  envoj^  with  full  power. 

2  Fiore,  droit  int.,  $$  991,  993  (French  Trans,  by  Antoine),  Paris.  1885. 

"  The  rule  that  a  treaty  is  vitiated  by  a  material  error  is  logically 
deducible  from  the  notion  of  a  contract.  The  rule,  on  the  other  hand, 
that  a  treaty  concluded  by  an  authorized  agent  who  has  not  exceeded 
his  instructions,  has  nevertheless  no  force  till  it  is  ratified,  cannot  be 
so  proved  ;  it  appears  at  first  sight  to  be  at  variance  with  ordiuary  legal 
analogies,  and  with  morality;  and  jurists,  trespassiug  beyond  their 
proper  province,  have  commonly  laid  down  that  ratification,  under  such 
circumstances,  is  a  moral  duty.  It  is,  however,  a  settled  rule,  with  the 
advantage  which  a  settled  rule  possesses,  of  being  a  thing  ascertained 
and  indisputable.  It  is  an  extra  precaution,  an  artificial  safeguard, 
against  improvident  or  ill  considered  engagements,  exactly  analogous 
to  those  rules  of  private  law  which  require  for  certain  private  contracts 
a  specified  form  of  words,  a  notarial  act,  a  payment  of  earnest,  or  a  sig- 
nature. That  it  is  salutary  and  conveuient  is  an  opinion  sound,  I 
have  no  doubt,  but  which  may  be  disputed  like  any  other  opinion  ;  that 
it  is  a  settled  rule  is  a  fact,  which  may  be  proved  by  evidence,  like  any 
other  fact." 

Bernard  on  Diplomacy,  174. 

(•2)  As  TO   LEGISLATION. 

§  131a. 

•'Having  been  a  member  of  the  general  convention,  and  knowing  the 
principles  upon  which  the  Constitution  was  formed,  I  have  ever  enter- 
tained but  one  opinion  on  this  subject,  and  from  the  first  establishment 
of  this  Government  to  this  moment  my  conduct  has  exemplified  that 
opinion,  that  the  power  of  making  treaties  is  exclusively  vested  in  the 
President,  by  and  with  the  advice  and  consent  of  the  Senate,  provided 
two-thirds  of  the  Senators  present  concur ;  and  that  every  treaty  so 
made  and  promulgated  thenceforward  became  the  law  of  the  land.  It 
is  thus  that  the  treaty-making  power  has  been  understood  by  foreign 
nations,  and  in  all  the  treaties  made  with  them  we  have  declared,  and 
they  have  believed,  that,  when  ratified  by  the  President,  with  the  ad- 
vice and  con.sent  of  the  Senate,  they  became  obligatory."  #  *  *  "As, 
therefore,  it  is  perfectly  clear  to  my  understanding  that  the  assent  of 
the  Bouse  of  Pepresentatives  is  not  necessary  to  the  validity  of  a 
treaty;  as  the  treaty  with  Great  P>ri  tain  exhibits  in  itself  all  the  ob- 
jects requiring  legislative  provision,  and  on  these  the  papers  called  for 
can  throw  no  light;  and  as  it  is  essential  to  the  due  administration  of 

15 


§  131a.]  TREATIES.  [chap.  VI. 

the  Government  that  the  boundaries  fixed  by  the  Constitution  between 
the  difierent  departments  should  be  preserved,  a  just  regard  to  the 
Constitution  and  to  the  duty  of  my  office,  under  all  the  circumstances 
of  this  case,  forbid  a  compliance  vpith  your  request." 

President  WasLiiiffton,  Spocial  Mess.Tge,  Mar.  ?>,  179G,  on  Jay's  treaty. 

''By  the  Constitution  of  the  United  States,  the  department  of  legis- 
lation is  coiitiued  to  two  branches  only  of  the  ordinary  legislature  ;  the 
President  originating  and  the  Senate  having  a  negative.  To  what  sub- 
ject this  power  extends  has  not  been  defined  in  detail  by  the  Constitu- 
tion, nor  are  we  entirely  agreed  among  ourselves.  (1)  It  is  admitted 
thar,  it  must  concern  tlie  foreign  nation,  party  to  the  contract,  or  it 
would  be  a  mere  nullity,  res  Inter  alios  acta.  (2)  i3y  the  general  power 
to  make  treaties,  the  Constitution  must  have  intended  to  comprehend 
only  those  objects  which  are  usually  regulated  by  treaty,  and  cannot  bo 
otherwise  regulated.  (3)  It  must  have  meant  to  except  out  of  these  the 
rights  reserved  to  the  States,  for  surely  the  President  and  Senate  can- 
not do  by  treaty  what  the  whole  Government  is  interdicted  from  doing 
in  any  way.  (4)  And  also  to  except  those  subjects  of  legislature  in 
which  it  gave  a  participation  to  the  House  of  Kepresentatives.  This 
last  exception  is  denied  by  some  on  the  ground  that  it  would  leave  very 
little  matter  for  the  treaty  power  to  work  on.  The  less  the  better,  say 
others. 

"The  Constitution  thought  it  wise  to  restrain  the  Executive  and  Sen- 
ate from  entangling  and  embroiling  our  affairs  with  those  of  Europe. 
Besides,  as  the  negotiations  are  carried  on  by  the  Executive  alone,  the 
subjecting  'to  the  ratification  of  the  Eepresentatives  such  articles  as  are 
within  their  participation  is  no  more  inconvenient  than  to  the  Senate. 
But  the  ground  of  this  exemption  is  denied  as  unfounded.  For,  examine, 
e.  g.,  the  treaty  of  commerce  with  France,  and  it  will  be  found  that  out 
of  thirty-one  articles  there  are  not  more  than  small  portions  of  two  or 
three  of  them  which  would  not  still  remain  as  subjects  of  treaties, 
untouched  by  these  exceptions.' " 

Mr.  Jefferson,  Man.  of  Pari.  Prac.  (N.  Y.,  1876),  110. 

"We  conceive  the  constitutional  doctrine  to  be  that  though  the  Presi- 
dent and  Senate  have  the  general  power  of  making  treaties,  yet  wherever 
they  include  in  a  treaty  matters  confided  by  the  Constitution  to  the 
three  branches  of  legislature,  an  act  of  legislation  will  bo  requisite  to 
contirm  these  articles,  and  that  the  House  of  Eepresentatives,  as  one 
branch  of  the  legislature,  are  perfectly  free  to  pass  the  act  or  to  refuse 
it,  governing  themselves  by  their  own  judgment  whether  it  is  for  the 
good  of  their  constituents  to  let  the  treaty  go  into  effect  or  not.  On  the 
precedent  now  to  be  set  will  depend  the  future  construction  of  our  Con- 
stitution, and  whether  the  powers  of  legislation  shall  be  transferred 
from  the  President,  Senate,  and  House  of  Eepresentatives  to  the  Presi- 
dent, Senate,  and  Piamingo,  or  anv  other  Indian,  Algerine,  or  other 
chief." 

Mr.  Jefferson  to  Mr.  Monroe,  Mar.  21,  17U3.     4  Jeff.  Works,  134. 

The  precedents  bearing  on  this  question  are  as  follows  : 
Jay's  treaty  was  ap])roved  by  the  Senate  by  the  requisite  two-thirds 
majority.     Its  ratification  was  ])roclaimed  by  the  President  on  February 
20,  179G,  and  this  proclamation  was  communicated  to  the  two  houses 

16 


CHAP.  VI.]  RATIFICATION    AND    APPROVAL.  [§  131rt. 

of  Cougress  on  March  1, 179G.  On  tlie  one  side  it  was  maintained  that 
the  power  of  the  President  and  Senate  as  to  treaties  was  absolute, 
and  that  the  House  of  Eepresentatives  was  bound,  untler  the  Constitu- 
tion, to  make  the  appropriations  necessary  to  carry  the  treaty  into 
effect.  On  the  other  side  it  was  contended  that  under  the  Constitution 
the  consent  of  the  House  was  requisite  to  pass  appropriations  to  carry 
the  treaty  into  effect,  and  that  this  was  as  much  known  to  the  other 
contracting  party  as  was  the  consent  of  the  Senate  to  the  preliminary 
adoption  of  the  treaty.  On  the  latter  assumption  the  House,  on  March 
24,  179G,  called  on  the  President  for  the  facts  relative  to  the  treaty. 
On  March  30,  1796,  the  President  declined  to  give  such  information, 
his  reasons  being  stated  in  a  message  given  above. 

As  to  Jay's  treaty,  see  also  infra,  §  150a.    See  also  8  Lodge's  Hamilton,  386,  39L 

"  The  first  impression  (as  to  the  treaty,  when  i^ublished  after  its  rati- 
fication by  the  Senate)  was  universally  and  simultaneously  against  it. 
At  length,  however,  doubts  began  to  be  thrown  out  in  New  York 
whether  the  treaty  was  as  bad  as  was  represented.  The  Chamber  of 
Commerce  proceeded  to  an  address  to  the  President,  in  which  they 
hinted  at  war  as  the  tendency  of  rejecting  the  treaty,  but  rested  the  de- 
cision with  the  constituted  authorities.  The  Boston  Chamber  of  Com- 
merce followed  the  example,  as  did  a  few  inland  villages.  As  soon  as  it 
was  known  that  the  President  had  yielded  his  ratification,  the  British 
party  were  reinforced  by  those  who  bowed  to  the  name  of  constituted 
authority  and  those  who  are  implicitly  devoted  to  the  President.  The 
princix)al  merchants  of  Philadelphia,  with  others,  amounting  to  about 
four  hundred,  took  the  lead  in  an  address  of  approbation.  *  *  *  It  is 
pretty  certain  that  a  majority  of  the  House  disai)proves  the  treaty,  but 
it  is  not  yet  possible  to  ascertain  their  ultimate  object,  as  matters  now 
lie." 

Mr.  Madisou  to  Mr.  Monroe,  Dec.  20,  1795.    2  Madison's  Writings,  64. 

"The  situation  is  truly  perplexing.  It  is  clear  that  a  majority,  if 
brought  to  the  merits  of  the  treaty,  are  against  it.  But  as  the  treaty 
is  not  regularly  before  the  House,  and  as  application  to  the  President 
brings  him  personally  into  the  question,  with  some  plausible  objections 
to  the  measure,  there  is  great  danger  that  enough  will  fly  off  to  leave 
the  opponents  of  the  treaty  in  a  minority." 

Mr.  Madison  to  Mr.  Jefferson,  Dec.  27,  1795  ;  ihid.,  69. 

"  The  business  of  the  treaty  with  Great  Britain  remains  as  it  stood.  A 
copy  of  the  British  ratification  has  arrived,  but  the  Executive  waits,  it 
seems,  for  the  original,  as  alone  proper  for  communication.  In  the  mean 
time,  although  it  is  probable  that  the  House,  if  brought  to  say  yea 
or  nay  directly  on  the  merits  of  the  treaty,  will  vote  against  it,  yet  a 
majority  cannot  be  trusted  on  a  question  applying  to  the  President  for 
the  treaty." 

Mr.  Madisou  to  Mr.  Monroe,  Jan.  26,  1796;  ihid.,  73.  To  same  effect,  Mr.  Madi- 
son to  Mr.  Jefferson,  Jan.  31,  1796;  ibid.,  75. 

"  We  are  at  length  cnibarlced  in  the  discussion  of  the  treaty,  which 
was  drawn  in  rather  abruptly  by  a  proi)Ositiou  calling  on  the  President 
for  papers.  The  point  in  debate  is  the  constitutional  right  of  Congress 
in  relation  to  treaties.  There  seems  at  present  strong  reasons  to  con- 
clude that  a  majority  will  be  in  favor  of  the  doctrine  that  the  House  has 

S.  iMis.  1 02— VOL.  II Ij  X7 


§  131a.]  TREATIES.  [chap.  VI. 

a  constitutional  rifjlit  to  refuse  to  pass  laws  for  executing:  a  treaty,  and 
that  the  treaty  power  is  limited  by  the  enumerated  powers.  Wbether 
the  right  ought,  in  the  present  case,  to  he  executed,  will  be  a  distinct 
question  on  the  merits  of  the  treaty,  which  have  not  yet  come  into 
discussion.  I  understand  that  the  treaty  party  expect  success  on  this 
question,  but  despair  on  every  other." 

Mr.  Madison  to  Mr.  Ji-ffcrsoii.  Mar.  13,  179G ;  ibid.,  88. 

"  The  newspapers  will  inform  you  that  the  call  for  the  treaty  i)aper8 
was  ciirrie<l  by  02  against . "37.  You  will  fin<l  the  answer  of  the  Presi- 
dent herewitli  inclosed.  The  absolute  refusal  was  as  nMexi)ected  as  the 
tone  and  tenor  of  the  message  are  improper  antl  intlelicate.  »  *  » 
I  think  there  will  be  sutlicient  firmness  to  face  it  with  resolutions  de- 
claring the  constitutional  powers  of  the  House  as  to  treaties,  and  that, 
in  applying  for  papers,  they  are  not  obliged  to  state  their  reasons  to  the 
Executive."' 

Same  to  same,  Apr.  4,  1796 ;  ihid.,  81). 

"  This  measure  of  the  Executive  produced  two  propositions,  asserting 
the  right  of  the  House  to  judge  of  the  expediency  of  treaties  stipulat- 
ing on  legislative  subject.s,  and  declaring  that  it  was  not  requisite  in  a 
call  for  papers  to  exi)ress  the  use  to  be  made  of  them.  It  was  expected 
that  a  long  and  obstinate  discus.sion  would  have  attended  these  defens- 
ive measures.  Under  that  idea,  I  entered  into  a  free  but  respectful  re- 
view of  the  fallacy  of  the  reasons  contained  in  the  message,  and  the 
day  being  nearly  spent,  the  committee  rose  and  an  adjournment  suc- 
ceeded. The  next  morning,  instead  of  a  reply,  the  question  was  called 
for,  and  taken  without  a  word  of  argument  on  the  subject.  The  two 
resolutions  were  carried  by  57  against  35;  and  six  members,  who,  not 
foreseeing  the  early  call  for  the  question,  had  not  taken  their  seats,  soon 
appeared  and  desired  to  have  their  names  added  to  the  majority.  This 
was  not  permitted  by  the  rules  of  the  House." 

Same  to  same,  Apr.  11,  179G;  ibid.,  94. 

"The  treaty  question  was  brought  to  a  vote  on  Friday  in  committee 
of  the  whole.  Owing  to  the  ab.sence  {certainly  casual  and  momentary) 
of  one  member  and  the  illness  of  another,  the  committee  were  divided, 
49  and  49.  The  chairman  (Muhlenberg)  decided  in  the  affirmative, 
saying  that  iu  the  House  it  would  be  subject  to  modification,  which  he 
wished.  In  the  House,  yesterday,  an  enemy  of  the  treaty  moved  a 
preamble  reciting  'that  although  thetreaty  was  highly  objectionable,  yet, 
considering  all  circumstances,  particularly  the  duration  for  two  years, 
&c.,  and  contiditig  in  tlie  efficacy  of  measures  that  might  be  taken  for 
stop|)ing  the  spoliations  and  impressments,  etc'  For  this  ingredient, 
which  you  will  perceive  the  scope  of,  all  who  meant  to  persevere  against 
the  treaty,  with  those  who  only  yielded  for  the  reasons  expressed  in  it, 
ought  to  have  united  in  voting,  as  making  the  pill  a  bitter  one  to  the 
treaty  party,  as  well  as  less  poisonous  to  the  public  interests.  A  few 
wronyheads,  however,  thought  fit  to  separate,  whereby  the  motion  was 
lost  by  one  vote.  The  main  question  was  then  carried  in  favor  of  the 
treaty  by  50  against  48.  This  revolution  was  foreseen,  and  might  have 
been  mitigated,  though  not  prevented,  if  sooner  provided  for.  lint  some, 
who  were  the  first  to  give  way  to  the  crisis  under  its  actual  pressure, 
were  not  averse  to  prepare  for  it.    The  progress  of  this  business  through- 

18 


CHAP.  VI.]  EATIFICATION    AND    APPROVAL.  [§  131rt. 

out  has  been  to  me  the  most  worrying  and  vexatious  I  ever  encoun- 
tered." 

Same  to  same,  May  1,  179G;  ibid.)  99.     See  infra,  §  150  a. 

The  answer  to  the  message,  which  had  the  sanction  of  Madison,  is  as 
follows : 

''  Resolved,  That  it  being  declared  in  the  second  section  of  the  Con- 
stitution that  the  President  shall  have  power,  by  and  with  the  advice 
and  consent  of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the 
Senators  present  concur,  the  House  of  Eepresentatives  do  not  claim  an 
agency  in  making  treaties ;  but  that  when  a  treaty  stipulates  regula- 
tions on  anj'  of  the  subjects  submitted  by  the  Constitution  to  the  power 
of  Congress,  it  must  depend  for  its  execution  as  to  such  stipulations  on 
a  law  or  laws  to  be  passed  by  Congress ;  and  it  is  the  constitutional 
right  and  duty  of  the  House  of  Representatives  in  all  sucb  cases  to  de- 
liberate on  the  expediency  or  inexpediency  of  carrying  such  treaty  into 
efiect  and  to  determine  and  act  thereon^  as  in  their  judgment  may  be 
most  conducive  to  the  public  good." 

It  was  further  resolved  "  that  it  is  not  necessary  to  the  propriety  of 
any  application  from  this  House  to  the  Executive  for  information  de- 
sired by  them,  and  which  may  relate  to  any  constitutional  functions  of 
the  House,  that  the  purpose  for  which  such  information  may  be  wanted, 
or  to  which  it  may  be  applied,  should  be  stated  in  the  application." 

Mr.  Gallatin,  in  his  speech  in  the  House  on  March  10,  179G,  on  Jay's 
treaty,  said,  with  great  force,  that  "if  the  treaty-making  power  is  not 
limited  by  existing  laws,  or  if  it  repeals  laws  that  clash  with  it;  or  if 
the  Legislature  is  obliged  to  repeal  the  laws  so  clashing,  then  the  legis- 
lative power  in  fact  resides  in  the  President  and  Senate,  and  they  can, 
by  employing  an  Indian  tribe,  pass  any  law  under  the  color  of  treaty." 
"  The  argument,"  says  Mr.  Adams  in  his  life  of  Gallatin  (101),  "is  irre- 
sistible ;  it  lias  never  been  answered ;  and  the  mere  statement  is  enough 
to  leave  only  a  sense  of  surprise  that  the  Federalists  should  have  haz- 
arded themselves  on  such  preposterous  ground." 

The  next  treaty  in  which  the  question  distinctively  arose  was  that 
with  France,  on  April  30, 1803,  for  the  cession  of  Louisiana.  Mr.  Jef- 
ferson, who  was  then  President,  had  maintained,  as  was  well  known, 
the  position,  as  above  stated,  that  whenever  Congress,  in  its  legislative 
action,  is  called  upon  to  make  appropriations  to  carry  out  a  treaty,  it 
had  a  full  constitutional  right  to  refuse  its  assent.  He  took  care  not 
to  appear  in  any  way,  when  asking  for  action  on  the  Louisiana  treaty, 
to  invade  the  prerogatives  he  had  so  fully  recognized  in  171)0.  He  sent 
in  a  special  message,  communicating  the  requisite  papers  "for  the  pur- 
pose of  the  consideration  of  Congress  in  its  legislative  capacity  "  or  "for 
the  exercise  of  their  functions  as  to  tliose  conditions  which  are  within 
the  power  vested  by  the  Constitution  in  Congress;"  and  so  far  from  as- 
suming that  this  power  was  to  be  exercised  as  a  nuitter  of  course,  he 
said,  "  You  will  observe  that  some  imi)ortant  conditions  cannot  be  car- 
ried iuto  execution  but  with  the  aid  of  the  legislature."  The  measures 
proper  for  the  execution  of  the  treaty  were  voted  without,  however,  any 
reassertions  of  the  principle  of  inde])endent  responsibility  laid  down  by 
the  House  of  Itepresentatives  in  1700, 

In  LSIO  the  Senate  ]»assed  a  bill  to  carry  iiitocOect  (he  coinint'icial 
convention  of  1815  with  Great  iiritain,  the  bill  so  jiassed  i)rovi<ling  lliftfc 

10 


§  131a.]  TREATIES.  [CUAP.  VI. 

SO  much  of  any  existing  act  as  might  be  contrary  to  the  provisions  of 
the  convention  shonUl  be  deemed  and  taken  to  be  of  no  effect.  The 
House  of  Ecpresentatives,  on  the  other  liaud,  passed  a  bill  enacting 
seriatim  the  jirovisions  of  the  treaty.  The  Senate  refused  to  concur,  on 
the  ground  that  the  treaty  was  operative  of  itself,  and  therefore  that 
the  act  should  be  declaratory  only.  On  the  other  hand  the  House  in- 
sisted that  legislation  was  necessary  to  carry  the  treaty  into  effect.  A 
committee  of  conference,  of  which  Eufns  King  was  chairman  of  the  man- 
agers on  the  i)art  of  the  Senate,  and  John  Forsyth  chairman  of  the 
managers  on  the  part  of  the  House,  agreed  on  a  bill,  which  was  then 
adopted.  The  principle  upon  which  this  adjustment  was  made  was  thus 
explained  by  Mr.  Forsyth  :  "  Your  committee  understood  the  committee 
of  the  Senate  to  admit  the  principle  contended  for  by  the  House,  that 
whilst  some  treaties  might  not  require,  others  may  require,  legislative 
provision  to  carry  them  into  effect;  that  the  decision  of  the  question, 
how  far  such  provision  was  necessary,  must  be  founded  upon  the  pecu- 
liar character  of  the  treaty  itself." 

The  opinion  of  Mr.  Wheaton,  on  the  collision  with  France,  in  respect  to 
the  treaty  with  that  country  of  July  4,  1831,  has  been  already  noticed 
(see  supra,  §  9),  and  in  a  future  section  will  be  discussed  the  action  taken 
by  the  United  States  in  relation  to  the  action  of  the  French  Chamber  of 
Deputies  to  carrj'  that  treaty  into  effect  by  appropriating  the  sum  neces- 
sary to  meet  the  indemnity  to  be  paid  by  France  to  the  United  States 
{infra,  §  318).  It  must  be  remembered,  however,  that  the  case  of  the 
action  of  the  French  Chamber  of  Deputies  in  refusing  the  appropriation 
under  the  treaty  of  1831  was  not  that  of  a  mere  refusal  to  approve  a 
treaty  relating  exclusively  to  the  future,  as  was  the  case  with  Jay's 
treaty.  The  debt  which  the  French  Chamber  refused  to  pay  was  one 
which  had  been  for  many  years  claimed  earnestly,  almost  to  the  point  of 
a  formal  declaration  of  war,  by  the  United  States,  and  had  been  over 
and  over  again  admitted  to  be  due  by  France.  AVhen  President  Jack- 
son, therefore,  advised  Congress  to  resort  to  reprisals  to  compel  pay- 
ment of  this  debt,  this  was  not  because  the  French  Chamber  of  Deputies 
refused  to  approve  a  treaty  which  had  been  negotiated  between  the  two 
Governments,  but  because  the  French  Government  had  repudiated  a 
debt  which  the  United  States  had  declared  to  be  incontestable,  and 
which  the  French  executive  had  admitted.  Eeprisals  for  repudiation 
of  a  debt  solemnly  acknowledged  are  recognized  by  the  law  of  nations, 
and  this  was  a  case  of  repudiation  of  a  debt  solemnly  acknowledged. 
There  was  no  discussion,  on  the  part  of  President  Jackson,  of  the  ques- 
tion as  to  how  far  the  consent  of  the  French  Chamber  of  Deputies  was 
necessary,  under  the  then  French  constitution,  to  the  validity  of  a  treaty. 
All  that  President  Jackson  did  or  said  may  be  regarded  as  limited  to 
the  following  position:  "You  owe  this  money;  we  have  already  pushed 
our  claim  to  the  verge  of  war,  and  you  have  admitted  it  to  be  due.  Y'ou 
must  pay;  your  admission  you  cannot  dispute,  since  it  was  made  by 
your  executive,  who  is  the  only  authoritj'  with  whom,  under  the  law  of 
nations,  we  can  negotiate." 

In  1813  Mr.  Wheaton  negotiated  a  commercial  treaty  with  the  Ger- 
man states.  The  Senate  Committee  of  Foreign  Relations  reported 
adversely  to  this  treaty,  on  the  ground  of  the  "  want  of  constitutional 
competency,"  to  make  it ;  and  the  Senate  laid  the  subject  on  the  table 
indefinitely.  Mr.  Calhoun,  then  Secretary  of  State,  comments  thus  on 
this  act :  "  If  this  be  a  true  view  of  the  treaty-making  power,  it  may  be 

20 


CHAP.  VI.]  RATIFICATION    AND    APPEOVAL.  [§  iSla. 

truly  said  that  its  exercise  bas  been  one  coutiuual  series  of  habitual  and 
uninterrupted  infringements  of  the  Constitution.  From  the  beginning-, 
and  throughout  the  whole  existence  of  the  Federal  Government,  it  has 
been  exercised  constantly  on  commerce,  navigation,  and  other  delegated 
powers." 

Mr.  Callioun  to  Mr.  Wheatou,  June  28,  1844  ;  MSS.  Inst.,  Germ. 

The  question  of  the  prerogatives  of  the  House,  when  the  efficiency 
of  a  treaty  depends  upon  its  action,  came  again  into  prominence  in  re- 
lation to  the  treaty  of  18G8  with  Eussia  for  the  cession  of  Alaska.  (See 
infra,  §  159.)  In  that  treaty  it  was  provided  that  the  territory  should 
be  transferred  on  the  exchange  of  ratifications  (art.  4),  and  that  Russia 
should  be  paid  an  indemnity  of  $7,200,000.  The  treaty  was  ratified  by 
the  Senate  on  May  28,  1867,  there  being  but  two  voices  in  the  negative. 
On  June  20,  1867,  President  Johnson  issued  a  proclamation  in  which, 
after  reciting  the  treaty,  he  declared :  "  Now,  therefore,  be  it  known 
that  I,  Andrew  Johnson,  President  of  the  United  States,  have  caused 
the  said  treaty  to  be  made  public  to  the  end  that  the  same  and  every 
clause  and  article  thereof  may  be  observed  and  fulfilled  with  good  faith 
by  the  United  States  and  the  citizens  thereof."  The  territory  was  trans- 
ferred by  Russia  to  the  United  States  on  October  18,  1867.  When, 
however,  the  question  of  appropriation  came  before  Congress  at  the 
ensuing  session,  it  was  at  once  seen  that  there  was  a  marked  division 
of  opinion.  The  majority  of  the  Committee  of  Foreign  Affairs  in  the 
House  of  Representatives  reported  as  follows :  "The  committee  reports 
to  the  House  the  following  bill,  making  an  a]>propriation  to  carry  the 
treaty  into  effect,  with  a  recommendation  that  it  be  enacted  into  a 
law:  'A  bill  to  enable  the  President  of  the  United  States  to  fulfill 
the  treaty  between  the  United  States  and  Russia  of  March  30,  1867. 
Be  it  enacted  by  the  Senate  and  House  of  Representatives,  that  there 
be,  and  hereby  is,  appropriated  $7,200,000  in  coin  to  fulfill  the  stipula- 
tions contained  in  the  sixth  article  of  the  treaty  with  Russia,  concluded 
at  Washington  on  the  30th  day  of  March,  1867.'"  A  minority  report 
was  made  in  which  the  worthlessness  of  the  territory  ceded  was  asserted, 
and  in  which  the  rejection  of  the  purchase  was  recommended. 

The  majority  report,  while  conceding  that  there  were  cases  in  which 
the  assent  of  the  House  to  a  treaty  might  be  properly  withheld,  limited 
such  right  to  cases  plainly  inconsistent  "with  the  fundamental  princi- 
ples, purposes,  or  interests  of  the  Constitution."  It  was  further  asserted 
that  "where  a  treaty  is  limited  to  objects  consistent  with  the  interests 
of  the  Government,  its  first  and  highest  duty  is  to  enact  such  measures 
as  are  necessary  to  carry  the  treaty  into  effect."  It  was  urged  that  as 
the  Alaska  treaty  had  infringed  no  constitutional  sanction,  laws  to  carry 
it  into  execution  should  be  passed.  (As  to  prior  negotiation,  see  infra, 
§159.)  Protracted  debate  ensued,  beginning  on  June  30  and  proceed- 
ing through  July,  the  discussion  relating  far  more  to  the  constitutional 
rights  of  the  House  in  such  issues  than  as  to  the  expediency  of  the 
purchase  of  Alaska.  The  tendency  of  the  majority  of  the  House  was 
evidently  to  sanction  the  Alaska  purchase,  but  to  couple  the  approval 
of  the  treaty  with  a  reservation  of  the  right  of  the  House  to  approve 
or  disapprove  in  all  cases  in  which  the  sanction  of  the  House  is  neces- 
sary to  execute  a  treaty.  The  following  amendment,  adopting  this 
view,  passed  the  Committee  of  the  Whole  by  a  vote  of  98  to  49,  and  the 
House,  on  July  14,  1867,  by  a  vote  of  113  to  43: 

"  Wlierons  the  President  of  Die  United  States,  on  the  30th  of  Marcji, 

21 


§  131rt.]  TREATIES.  [chap.  VI. 

18G7,  c'liteied  into  ;i  treaty  with  the  Enii)eror  of  llussia,  by  the  terms 
of  which  it  was  stipuUited  that  in  consideration  of  the  cession  by  the 
Emperor  of  llnssia  to  the  United  States  of  certain  territory  therein 
described,  the  United  States  vronld  pay  to  the  Emperor  of  llnssia  the 
snm  of  $7,200,000  in  coin  ;  and  whereas  it  was  fnrthcr  stipulated  in  said 
treaty  that  the  United  States  shall  accept  of  such  cession,  and  that  cer- 
tain inhabitants  of  said  territory  shall  be  admitted  to  the  enjoyment  of 
all  the  rights  and  immunities  of  citizens  of  the  United  States;  and 
whereas  the  subjects  thus  embraced  in  the  stii)ulations  of  said  treaty 
are  amon,ix  the  subjects  which  by  the  Constitution  of  the  United  States 
are  submitted  to  the  power  of  Congress,  and  over  which  Congress  has 
jurisdiction  ;  and  it  being  for  such  reason  necessary  that  the  consent  ot 
Congress  shall  be  given  to  the  said  treaty  before  the  same  shall  have 
full  force  and  eflect,  having  taken  into  consideration  the  said  treaty, 
ami  approving  of  the  stipulations  therein,  to  tlic  end  that  the  same 
may  be  carried  into  eflect,  therefore, 

"  Sec.  1.  Be  it  enacted  by  the  Senate  and  llouae  of  Keprcseutatives 
of  the  United  States  of  America  in  Congress  assembled,  that  the  assent 
of  Congress  is  hereby  given  to  the  stipulations  of  said  treaty." 

The  Senate,  on  July  17,  restored  the  bill  to  its  original. shape,  in  this 
v^ny  rejecting  the  distinctive  position  of  the  House  that  the  consent  of 
Congress  as  a  legislative  body  is  necessary  to  the  payment  of  money 
and  the  incorporation  of  territory,  when  provided  for  in  a  treaty.  This 
conflict  of  opinion  between  the  two  houses  led  to  the  two  bills  being 
sent  to  a  conference  committee,  the  Senatorial  members  of  which  in- 
sisted that  the  Ilouse  was  absolutely  bouml  to  carry  out  the  stipula- 
tions of  a  treaty  which  was  duly  ratified  by  the  Senate.  (See  Con- 
gressional Globe  for  1807,  4031,  4L59,  4392.)  The  committee,  however, 
tinallj"  united  on  the  following  measure: 

"An  act  making  an  appropriation  of  money  to  carry  into  eflect  the 
treaty  with  Eussia  of  March  oO,  18G7. 

"Whereas  the  President  of  the  United  States,  on  the  30th  of  March, 
1867,  entered  into  a  treaty  with  the  Emperor  of  Kussia,  by  the  terms 
of  which  it  was  stipulated  that  in  consideration  of  the  cession  by  the 
Emperor  of  Russia  to  the  United  States  of  certain  territory  therein  de- 
scribed, the  United  States  should  pay  to  the  Emperor  of  Russia  the 
sum  of  $7,200,000  in  coin ;  and  whereas  it  was  further  stipulated  in 
said  treaty  that  the  United  States  shall  accept  of  such  cession,  and 
that  certain  inhabitants  of  said  territory  shall  be  admitted  to  the  en- 
joyment of  all  the  rights  and  immunities  of  citizens  of  the  United 
States;  and  u'hcreas  said  stijyidations  cannot  he  carried  into  full  force 
and  effect  except  hy  lefjislatioii  to  which  the  consent  of  both  houses  of 
Congress  is  necessari/ ;  therefore 

"  Beit  resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled,  that  there  be  and  hereby  is,  ap- 
propriated, from  any  money  in  the  Treasury  not  othericise  appropriated, 
$7,200,000  in  coin,  to  fulfil  stipulations  contained  in  the  sixth  article  of 
the  treaty  icith  llussia,  concluded  at  Washington,  on  the  'SOlh  day  of  March, 
18(57." 

Tliis  measure,  which  was  adopted  in  the  House  by  a  vote  of  91  to  48, 
has  the  features  of  comi)romise  strongly  impressed  upon  it.  All  that  it 
gives  specific  legislative  assent  to  is  the  approi)riation  of  $7,200,000. 
The  preamble  asserts,  not  merely  that  $7,200,000  is  to  be  paid  for  the  pur- 
chase, but  that  certain  inhabitants  of  the  territory  should  be  admitted  to 
certain  ]>rivilegos.     The  resolution   says  nothing  about  the  privileges 


CHAr.  VI.]  RATIFICATION    AND    APrROVAL.  [§  131<2. 

and  confiues  itself  to  the  appropriation.  So  far,  therefore,  as  Congress 
was  concerned,  there  was  no  action  which  might  be  regarded  as  taking 
the  position  that  the  House  has  the  prerogative  of  affirming  or  rejecting, 
at  its  discretion,  execution  of  a  treaty  when  such  execution  is  depend- 
ent on  its  action.  This  right,  however,  is  implied  in  the  resolution  of 
the  House  adopted  on  July  14,  1867. 

The  question,  therefore,  which  was  agitated  in  1796,  whether  Con- 
gress can,  under  the  Constitution,  refuse,  in  its  legislative  capacity,  to 
pass  acts  for  the  execution  of  treaties  duly  ratified,  remains  still  open. 
Yet  two  positions  may  be  regarded  as  accepted  in  the  practical  working 
of  our  Government.  One  is  that  without  a  Congressional  vote  there 
can  be  no  appropriation  of  money  which  a  treaty  requires  to  be  paid. 
The  other  is  that  it  should  require  a  very  strong  case  to  justify  Con- 
gress in  refusing  to  pass  an  appropriation  which  is  called  for  by  a  treaty 
duly  ratified. 

"Treaties  of  peace,  when  made  by  the  competent  power,  are  obliga- 
tory upon  the  whole  nation.  If  the  treaty  requires  the  payment  of 
money  to  carry  it  into  effect,  and  the  money  cannot  be  raised  but  by  an 
act  of  the  legislature,  the  treaty  is  morally  obligatory  upon  the  legis- 
lature to  pass  the  law,  and  to  refuse  it  would  be  a  breach  of  the  public 
faith.  The  department  of  the  Government  that  is  intrusted  by  the 
Constitution  with  the  treaty-making  power  is  competent  to  bind  the 
national  faith  in  its  discretion,  for  the  power  to  make  treaties  of  peace 
must  be  co-extensive  with  all  the  exigencies  of  the  nation,  and  neces- 
sarily involves  in  it  that  portion  of  tlie  national  sovereignty  which  has 
the  exclusive  direction  of  diplomatic  negotiations  and  contracts  with 
foreign  powers.  All  treaties  made  by  that  power  become  of  absolute 
efficacy,  because  they  are  the  supreme  law  of  the  laud.  There  can  be 
no  doubt  that  the  power  competent  to  bind  the  nation  by  treaty  may 
alienate  the  public  domain  and  property  by  treaty.  If  a  nation  has 
conferred  upon  its  executive  department,  without  reserve,  the  right  of 
treating  and  contracting  with  other  states,  it  is  considered  as  having 
invested  it  with  all  the  power  necessary  to  make  a  valid  treaty.  That 
department  is  the  organ  of  the  nation,  and  the  alienations  by  it  are 
valid,  because  they  are  done  by  the  reputed  will  of  the  nation.  The 
fundamental  laws  of  a  State  may  withhold  from  the  executive  depart- 
ment the  power  of  transferring  what  belongs  to  the  States,  but  if  there 
be  no  express  provision  of  that  kind  the  inference  is  that  it  has  confided 
to  the  department  charged  with  the  power  of  making  treaties  a  discre- 
tion commensurate  with  all  the  great  interests  and  wants  and  necessi- 
ties of  the  nation." 

1  Kent'8  Com.,  162. 

"  If  a  treaty  be  the  law  of  the  land,  it  is  as  much  obligatory  upon 
Congress  as  upon  any  other  branch  of  the  Government,  or  upon  the 
people  at  large,  so  long  as  it  continues  in  force  and  unrepealed.  The 
House  of  Ilepresentatives  are  not  above  the  law,  and  tliey  have  no  dis- 
pensing ])ower.  Theyhave  a  right  to  make  and  to  repeal  laws,  provided 
the  Senate  and  President  concur,  but  without  ouch  concurrence  a  law 
in  the  shape  of  a  treaty  is  as  binding  ujjontlicni  as  if  it  were  in  tlie  shape 
of  an  act  of  Congr(Nss,  or  of  an  article  of  the  Constitution,  or  of  a  (con- 
tract made  l\y  authority  of  law.  The  argument  in  lavor  of  the  binding 
and  conclusive  efficacy  of  every  treaty  made  by  IIk;  President  and  Senate 

23 


§  131«.]  TREATIES.  [chap.  VI. 

is  so  clear  and  palpable,  that  it  has  probably  carried  very  general  con- 
viction throughout  the  conimnnity;  and  this  may  now  be  considered  as 
the  decided  sense  of  public  opinion."     {Ibid.,  280.) 

"If  a  treaty  require  the  payment  of  money  to  carry  it  into  effect,  and 
the  money  can  only  be  raised  or  appropriated  by  an  act  of  the  legisla- 
ture, the  existence  of  the  treaty  renders  it  morally  obligatory  on  Con- 
gress to  pass  the  requisite  law,  and  its  refusal  to  do  so  would  amount 
to  a  breach  of  the  public  faith,  and  aflford  just  cause  of  war.  That  de- 
]);utment  of  the  Government  which  is  intrusted  by  the  Constitution  with 
the  ])ower  of  making  treaties  is  competent  to  bind  the  national  faith  at 
its  discretion 5  for  the  power  to  make  treaties  must  be  co-extensive  witt 
the  national  exigencies,  and  necessarily  involves  in  it  every  portion  of 
the  national  sovereignty,  of  which  the  co-operation  may  be  necessary  to 
give  effect  to  negotiations  and  contracts  with  foreign  nations.  If  a 
nation  confer  on  its  executive  department  without  reserve  the  right  of 
treating  and  contracting  with  other  sovereignties,  it  is  considered  as 
having  invested  it  with  all  the  power  necessary  to  make  a  valid  con- 
tract, and  that  it  is  the  organ  in  making  its  contracts;  and  such  aliena- 
tions are  valid,  because  they  are  made  by  the  reputed  assent  of  the 
nation." 

Duer's  Outlines  of  Constitutional  Jurisprudence  of  the  United  States,  138. 

"  The  treaty-making  power  is  limited  by  all  the  provisions  of  the  Con- 
stitution which  inhibit  certain  acts  from  being  done  by  the  Government. 
It  is  also  limited  by  such  provisions  of  the  Constitution  as  direct  certain 
acts  to  be  done  in  a  particular  way,  and  which  prohibit  the  contrary, 
of  which  a  striking  example  is  to  be  found  in  that  which  declares  that 
no  money  shall  be  drawn  from  the  Treasury  but  in  consequence  of  ap- 
propriations to  be  made  by  law.  This  not  only  imposes  an  important 
restriction  on  the  power,  but  gives  to  Congress  as  the  law-making  power, 
and  to  the  House  of  Representatives,  as  a  portion  of  Congress,  the  right 
to  withhold  appropriations,  and  thereby  an  important  control  over  the 
treaty-making  power,  Avhenever  money  is  required  to  carry  a  treaty  into 
effect,  which  is  usually  the  case,  especially  in  reference  to  those  of  the 
most  in)portance.  There  still  remains  another  and  more  important  lim- 
itation, but  of  a  more  general  and  indefinite  character.  It  can  enter  into 
no  stipulation  calculated  to  change  the  character  of  the  Government,  or 
to  do  that  which  can  only  be  done  by  the  constitution-making  power, 
or  which  is  inconsistent  with  the  nature  and  structure  of  the  Govern- 
ment." 

Calhoun's  Discourse  ou  Govcinmeut.     1  Works,  201. 

"D'apres  la  constitution  des  Etats-Unis,  par  laquelle  les  traites  faits 
et  ratifies  par  le  president,  avec  I'avis  et  le  consentement  du  sciuat,  sont 
d6clar('^s  etre  la  loi  supreme  du  pays,  ou  semble  comprendre  que  le  con- 
gr^s  est  oblig6  de  d^gager  la  foi  nationale  ainsi  engagee,  et  d'adopter 
les  lois  nc^cessaires  ^  I'execution  du  trait<5." 

Whcoton,  Elements  du  droit  int.  (4th  ed.),  241. 

Mr.  "Wheaton's  letter  to  Mr.  Butler,  Attorney-General,  on  the  refusal  of 
the  French  Chamber  to  appropriate  the  sum  necessary  for  the  payment 
of  the  fund  agreed  on  by  the  French  indemnity  treaty,  has  been  already 
cited.  {Supra,  §  9;  infra,  §  318.  See  also  Dalleck's  Int.  Law  (Baker's  ed.) 
232,  citing  Wheaton's  Life  of  Pinknev,  517-'49;  1  Kent's  Com.,  285^ 
President's  Mess.,  Dec,  1834;  Ann.  Reg.,  1834,  301.)     This  is  another 

24 


CHAP.  VI.]  RATIFICATION    AND    APPROVAL.  [§13l«. 

form  of  stating  the  positiou  elsewhere  meutioued,  that  a  treaty  may  bind 
iuternationally  when  it  would  not  bind  municipally.  {Supra,  §  9.)  The 
United  States,  for  instance,  may  by  statute  impose  on  its  own  citizens 
less  stringent  rules  of  neutrality  than  it  imposes  on  itself  by  treaty;  but 
such  municipal  laxity  on  its  part  will  not  relieve  it  from  its  obligations 
by  treaty  or  by  international  law.  (See  infra,  §  402.)  A  Government 
also  is  liable  for  violations  of  international  duty  by  its  judiciary.  {Infra, 
§  329rt.) 

It  is  not  inconsistent  with  this  position  that  the  United  States  is  not 
liable  for  a  treaty  which  the  Senate  refuses  to  ratify,  since  no  Govern- 
ment is  iuteruatioually  liable  on  a  treaty  not  agreed  to  by  the  treaty- 
making  power.     (See  supra,  §  9;  infra,  §  318.) 

"  The  disputed  northeastern  boundary  between  Great  Britain  and  the 
United  States  involved  the  territory  of  the  State  of  Maine,  in  which  Mas- 
sachusetts also  had  an  interest.  The  line  established  by  the  Ashburton 
treaty  of  1842  differed  from  that  claimed  by  Maine,  and  ceded  parts 
over  which  Maine  had  exercised  jurisdiction.  Still  the  treaty  was  a  sov- 
ereign act  of  the  United  States  with  Great  Britain  and  operated  as  an 
international  settlement.  Neither  of  the  States  of  Maine  or  Massachu- 
setts was  in  any  way  party  to  it,  or  named  in  it,  except  in  the  fifth 
article,  in  which  the  United  States  agreed  to  receive  and  pay  over 
to  those  States  certain  i)ortions  of  a  common  fund  established  by  con- 
sent for  the  care  of  the  territory  while  under  dispute,  and  to  pay  to 
those  States  a  further  sum  on  account  of  their  assent  to  the  line  of  bound- 
ary described  in  this  treaty.  Lord  Ashburton  disclaimed  all  respon- 
sibility of  Great  Britain  for  an}''  matters  between  the  United  States  and 
the  individual  States  referred  to  in  that  article.  Commissioners  on  tlie 
part  of  Maine  and  Massachusetts  gave  their  assent  to  the  treaty  before 
it  was  concluded  b^'  the  Government ;  but  that  was  an  internal  matter, 
and  did  not  concern  Great  Britain.  oS^either  is  the  fact  that  the  United 
States  chose  to  secure  the  consent  of  Massachusetts  and  Maine  con- 
clusive upon  the  much  canvassed  question  of  its  constitutional  power  to 
have  made  the  treaty  without  their  assent.  (United  States  Laws,  viii, 
554  ;  Webster's  Works,  vi,  272,  289  ;  Opinions  of  Attorneys-General,  vi, 
75G  ;  Kent's  Com,,  i,  106,  167 ;  Woolsey's  Introd.,  §  99  ;  Halleck's  Int. 
Law,  848.  The  Schooner  Peggy,  Cranch,  i,  103  ;  Ware  v.  Tilton,  Dal- 
las, iii,  109.) 

"If  a  treaty  requires  the  paj^ment  of  money,  or  any  other  special 
act,  which  cannot  be  done  without  legislation,  the  treaty  is  still  bind- 
ing on  the  nation,  and  it  is  the  duty  of  the  nation  to  pass  the  nec- 
essary laws.  If  that  duty  is  not  performed,  the  result  is  a  breach  of  the 
treaty  by  the  nation,  just  as  much  as  if  the  breach  had  been  an  affirma- 
tive act  by  any  other  department  of  the  Government.  Each  nation  is 
responsible  for  the  right  working  of  the  internal  system  by  which  it 
distributes  its  sovereign  functions,  and  as  foreign  nations  dealing  with 
it  cannot  be  permitted  to  interfere  with  or  control  these,  so  they  are 
not  to  be  affected  or  concluded  by  them  to  their  own  injurj'.  (See  Kent, 
i,  105-6;  Ileffter,  §  84;  Vattel  droit  des  gens,  liv.  iv,  ch.,  2,  §  14;  Hal- 
leek,  854.) 

Datia'H  Whcaloii,  ^  'A:i,  iiofc,  'JoO. 

"Chancellor  Kent,  I  think,  expressed  astonishment  and  regret  that  a 
resolution,  fonndod  on  tlio  incidents  of  Jay's  treaty,  was  passed  by  tlio 

25 


§131a.]  TREATIES.  [chap.  VI. 

House  ol"  Ueprc'seiitatives  in  170G,  declariu|;'  wLat  is  uow  iiuderstood  to 
be  settled  Euglish  law  aud  ])iaclice,  that  is,  if  a  treaty  depend  for  the 
execution  of  any  of  its  stipulations  upon  a  legislative  act,  the  House 
could  and  should  determine  on  the  exi)ediency  of  carrying  it  into  effect 
or  letting  it  pbort.  AVhether  the  princijile  of  that  resolution  was  aban- 
doned, or  only  pretermitted  on  the  emergency  of  1810,  may  be  questioned. 
It  disapi)oints  expectation,  but  in  reality  is  not  illogical,  that  the  treaty- 
making  power  wlien  in  the  hands  of  a  hereditary  monarch  should  be 
more  trammeled  and  restricted  than  when  in  the  hands  of  an  elective 
Chief  IMagistrate  and  Senate.  I  trust,  however,  that  sliouhl  the  con- 
troversj'  revive,  our  llepresentatives  may  feel  themselves,  mavfjre  Chan- 
cellor Kent,  free  to  be  at  least  as  democratic  as  the  British  Commons. 
It  is  noticeable  that  the  precedent  of  a  parliamentary  stand  against  a 
treaty  was  made  during  the  ministry  of  Pitt,  almost  contemporaneously 
with  Jay's;  and  that  while  on  this  side  of  the  Atlantic,  the  popular 
resistance  triumphed,  by  leading  to  the  withdrawal  and  abandonment 
of  the  measure  on  our  side,  notwithstanding  an  agitation  alike  universal 
and  violent,  we  were  compelled  to  swallow,  pure  and  undiluted,  the 
strong  concoction  of  the  venerable  Chief  Justice." 

Mr.  Dallas  to  Mr.  Ingersoll,  May  21, 1860.    2  Dallas's  Letters  from  Loudon,  209. 

That  a  treaty  cannot  invade  the  constitutional  prerogatives  of  the 
legislature  is  thus  illustrated  by  a  German  author,  who  has  given  to  the 
subject  a  degree  of  elaborate  and  extended  exposition  which  it  has  re- 
ceived from  no  writer  in  our  own  tongue.  "Congress  has  under  the  Con- 
stitution the  right  to  lay  taxes  and  imi)Osts,  as  well  as  to  regulate  foreign 
trade,  but  the  President  and  Senate,  if  the  'treaty-making  power'  be  re- 
garded as  absolute,  would  be  able  to  evade  this  limitation  by  adopting 
treaties  which  would  compel  Congress  to  destroy  its  whole  tariff  system. 
According  to  the  Constitution,  Congress  has  the  right  to  determine  ques- 
tions of  naturalization,  of  patents,  and  of  copyright.  Yet,  according 
to  the  view  here  contested,  the  President  and  Senate,  by  a  treaty, could 
on  these  important  questions  utterly  destroy  the  legislative  capacity  of 
the  House  of  I-Jepresentatives.  The  Constitution  gives  Congress  the 
control  of  the  Army.  Participation  in  this  control  would  be  snatched 
from  the  House  of  Pepresentatives  by  a  treaty  with  a  foreign  ))ower  by 
which  the  United  States  would  bind  itself  to  keep  in  the  field  an  army 
of  a  particular  size.  The  Constitution  gives  Congress  the  right  of  de- 
claring war;  this  right  would  be  illusory  if  the  President  and  Senate 
could  by  a  treaty  launch  the  country  into  a  foreign  war.  The  power  of 
borrowing  money  on  the  credit  of  the  United  States  resides  in  Congress; 
this  power  would  cease  to  exist  if  the  President  and  Senate  could  by 
treaty  bind  the  country  to  the  borrowing  of  foreign  funds.  By  the  Con- 
stitution '  no  money  shall  be  drawn  from  the  Treasury,  but  in  conse- 
quence of  appropriations  made  by  law : '  but  this  limitation  would  cease 
to  exist  if  by  a  treaty  the  United  States  could  be  bound  to  pay  money 
to  a  foreign  power.  *  *  *  Congress  would  cease  to  be  the  law-mak- 
ing power  as  is  prescribed  by  the  Constitution  :  the  law  making  power 
would  be  the  President  and  the  Senate.  Such  a  condition  would  be- 
come the  more  dangerous  from  the  fact  that  treaties  so  adopted,  being 
on  this  particular  hypothesis  superior  to  legislation,  would  continue  in 
force  until  superseded  by  other  treaties.  Kot  only,  therefore,  would  a 
Congress  consisting  of  two  houses  be  made  to  give  way  to  au  oligarchy 
of  President  and  Senate,  but  the  decrees  of  this  oligarchy,  when  once 

26 


CHAP.  VI.]      WHEN  TREATY  GOES  INTO  EFFECT.       [§  132. 

made,  could  ouly  be  chauged  by  concurrence  of  President  and  of  Sena- 
torial majority  of  two-thirds." 

Ueber  den  ALscliluss  von  Staatsvertriigen,  von  Dr.  Ernest  Meier,  Professor  der 
RecLte  an  der  Universitat  Halle,  Leipzig,  1874. 

Although  the  action  of  Congress  in  its  legislative  capacity  may  be 
necessary  to  carry  into  effect  a  treaty  duly  approved  by  the  President  and 
Senate,  such  action  may  be  regarded  as  a  i)olitical  duty  under  ordinary 
circumstances,  and  in  no  case  has  such  legislative  aid  been  heretofore 
refused. 

G  Op.,  296,  Gushing,  1854. 

A  treaty  whi<;h  does  not  require  legislation  to  make  it  operative  will 
be  executed  by  the  courts  from  the  time  of  its  i)roclamation. 

6  Op.,  750,  Gushing,  1854;  Foster  v.  Neilson,  2  Pet.,  314;  U,  S.  v.  Arredondo,  6 
Pet.,  725. 

III.   WHEN  TREATY  GOES  INTO  EFFECT. 

§  132. 

As  respects  performance  of  the  conditions  of  a  grant  by  a  private 
grantee,  the  date  of  a  treaty  is  the  date  of  its  final  ratification. 

U.  S.  V.  Arredondo,  6  Pet.,  6'Jl. 

So  far  as  concerns  individual  rights  of  parties  interested,  a  treaty 
does  not  operate  until  there  has  been  an  interchange  of  ratifications. 
So  far  as  concerns  the  relations  of  the  sovereigns  concerned,  it  oper- 
ates, when  ratified,  from  the  date  of  its  signature. 

Haver  v.  Yaker,  9  "Wall.,  32 ;  Davis  v.  Concordia,  9  How.,  280 ;  Hylton  v.  Brown, 
1  Wash.  C.  G.,  343.     See  Montault  v.  U.  S.,  12  How.,  47. 

The  treaty  by  which  France  ceded  Louisiana  to  the  United  States 
took  effect  from  its  date,  April  30,  1803.    Its  subsequent  ratification 
and  the  formal  transfer  of  possession  have  relation  to  that  date. 
U.  S.  V.  Reynes,  9  How.,  127. 

The  same  rule  applies  to  the  treaty  of  St.  Ildefonso,  October  1, 1800, 
by  which  France  acquired  Louisiana  from  Spain. 

U.  S.  I'.  Reynes,  9  How.,  127  ;  Davis  r.  Concordia,  ibid,  2:0. 

Unless  otherwise  provided,  treaties,  in  their  public  relations,  take 
effect  from  signature,  to  which  period  the  ratification  relates  back. 

Davis  V.  Concordia,  9  How.,  280. 

While  a  treaty  is  the  supreme  law  of  the  laud,  and  operates  as  such 
in  all  matters  not  requiring  legislative  action,  yet,  when  made  dependent 
on  legislative  action,  it  does  not  take  effect  until  such  action  is  had. 

Foster  r.  Ncilsou,  2  Pet.,  253;  U.  S.  r,  Percheiuan,  7  Pet.,  54;  Garcia  v.  Lee,  12 
Pet.,  511 ;  Haver  v.  Yaker,  9  Wall.,  32  ;  Turner  v.  Baptist  Union,  5  McLean, 
344  ;  Bartram  v.  Robentson,  15  Fed.  Rep.,  212. 

27 


§133.]  TREATIES.  [chap.  VT. 

"The  general  rule  of  i)ublic  law  is  that  a  treaty  'is  biiuliug  ou  the 
contracting  liartics  from  the  date  of  its  signature,  unless  it  contain  an 
express  stipulation  to  the  contrary.'     (Wheaton's  Int.  Law,  30G.)" 
Mr.  ]5nclianan,  Sec.  of  Stcite,  to  Mr.  Clay,  Sept.  18,  1847.     MSS.  Inst.,  Tcru. 

"A  treaty  is  binding  on  the  contracting  parties  unless  otherwise  pro- 
vided, from  the  day  of  its  date."  (Davis  v.  Concordia,  9  IIow.,  280 ; 
Hylton  r.  Brown,  1  Wash.  C.  C,  34.3.)  "  The  exchange  of  ratilications 
has,  in  such  case,  a  retroactive  eft'ect,  confirming  the  treaty  from  its 
date.  l>ut  a  different  rule  prevails  when  the  treaty  operates  on  indi- 
vidual rights.  The  principle  of  relation  does  not  apply  to  rights  of  this 
character  which  were  vested  before  the  treaty  was  ratified ;  it  is  not 
considered  as  concluded  until  there  is  an  exchange  of  ratifications. 
Haver  v.  Yaker,  9  Wall.,  32;  U.  S.  v.  Arredondo,  G  Pet.,  G91." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"In  the  case  of  the  indemnity  agreed  to  be  paid  by  Venezuela  to 
American  citizens  expelled  from  the  Aves  Island,  it  was  held:  'It  is 
not  necessary  to  submit  to  the  Senate,  for  its  formal  approval,  conven- 
tions providing  for  the  adjustment  of  i)rivate  claims,  unless  such  a 
course  is  indicated  in  the  convention  itself.  But  the  want  of  such  rati- 
fication, on  the  part  of  this  Government,  does  not  prevent  recourse  to 
that  formality  at  any  future  jieriod,  should  it  be  deemed  exi)edient,  nor 
does  it  in  any  respect  weaken  or  invalidate  the  binding  effect  of  the 
convention  upon  Venezuela..  Indeed,  the  good  faith  of  that  Eepublic 
having  been  pledged  to  the  provisions  of  the  convention  by  the  ratifica- 
tion of  the  proper  authorities,  there  would  be  no  more  hesitation  ou  the 
part  of  this  Government  to  enforce  its  stipulations,  should  it  become 
necessary,  than  if  the  instrument  had  been  ratified  by  the  United  States 
as  well  as  Venezuela.'  Senate  Ex.  Doc.  10,  3Gth  Cong.,  2d  sess.,  472. 
Mr.  Cass  to  Mr.  Sandford,  Oct.  22,  1859." 

Lawrence's  Wheaton  (ed.  18G3),  p.  456. 

IV.  CONSTRUCTION  AND  INTERPRETATION. 

§133. 

"When  a  party  from  necessity  or  danger  withholds  compliance  with 
part  of  a  treaty,  it  is  bound  to  make  compensation  where  the  nature  of 
the  case  admits  and  does  not  dispense  with  it." 

Opiniou  of  Mr.  Jefferson,  Sec.  of  State,  Mar.  18,  1792.    7  Jeff.  Works,  572. 

"When  performance  (of  a  treaty)  becomes  impossible,  nonperform- 
ance is  not  immoral;  so  if  performance  becomes  self-destructive  to  the 
party,  the  law  of  self-preservation  overrules  the  laws  of  obligation  to 
others." 

Opinion  of  Mr.  Jefferson,  Sec.  of  State,  Apr.  28,  1793.     7  Jeff.  Works,  G13. 

But  "it  is  not  the  2>ossi6i?ift/ of  danger  which  absolves,  *  *  *  for 
that  possibility  always  exists,  and  in  every  case." 

Ibii.     See  Infra,  137a. 
28 


CHAP.  VI.]  CONSTRUCTION   AND    INTERPRETATION.  [§  133. 

"There  is  no  rule  of  construction  better  settled,  either  in  relation  to 
covenants  between  individuals  or  treaties  between  nations,  than  that 
the  whole  instrument  containing  the  stipulations  is  to  be  taken  together, 
and  that  all  articles  in  pari  materia  should  be  considered  as  parts  of  the 
same  stipulation." 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Lederer,  Nov.  .5,  1832.     MSS.  Notes,  For. 
Leg. 

"Where,  by  the  express  terms  of  a  treaty,  the  mode  of  receiving  pay- 
ment of  money  to  be  paid  is  submitted  without  limitation  to  the  party 
entitled  to  receive,  he  alone  can  make  the  designation ;  and  it  is  equally 
true  that  those  modes  which  Governments  may  and  often  do  accept  by 
express  stipulation  cannot  only  be  not  deemed  contrary  to  the  rules  and 
customs  generally  observed,  but  may  be  properly  resorted  to  under  a 
treaty,  which,  by  excluding  no  particular  mode,  fairly  embraces  every 
one  which  is  appropriate  to  such  transactions  between  nations,  and  con- 
venient to  the  party  entitled  to  receive." 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Serurier,  June  3,  1833.     Notes,  For.  Leg. 
See  also  Mr.  McLane  to  Mr.  Sernrier,  June  27,  1834 ;  Hid. 

"  jSTothing  is  more  common  in  countries  where  the  judiciary  is  an  inde- 
pendent branch  of  the  Government  than  for  questions  arising  under 
treaties  to  be  submitted  to  its  decision.  Indeed,  in  all  regular  Govern- 
ments, questions  of  private  right  arising  under  treaty  stipulations  are 
in  their  nature  judicial  questions.  With  us  a  treaty  is  part  of  the 
supreme  law  of  the  land  ;  as  such,  it  influences  and  controls  the  decis- 
ions of  all  tribunals ;  and  many  instances  might  be  quoted  of  decisions 
made  in  the  Supreme  Court  of  the  United  States  arising  under  their 
several  treaties  with  vSpain  herself,  as  well  as  under  treaties  between  the 
United  States  and  other  nations.  Similar  instances  of  judicial  decisions 
on  points  arising  under  treaties  may  be  found  in  the  history  of  France, 
England,  and  other  nations;  and,  indeed,  the  undersigned  would  take 
the  liberty  to  remind  the  Chevalier  de  Argaiz  that  this  very  treaty  of 
1795  has  been  made  the  subject  of  judicial  decision  by  a  Spanish  tri- 
bunal. The  undersigned  would  call  to  the  recollection  of  the  Chevalier 
de  Argaiz  the  case  of  M.  D.  Hareng,  in  which  the  Spanish  colonial 
courts  decided,  according  to  their  sense,  of  the  intention  of  the  treaty  of 
1795,  and  the  intendant  confirmed  their  decree,  which  was  that  nothing 
in  that  treaty  exempted  Mr.  Hareng  from  the  jiayment  of  certain 
demands.  From  this  decision  this  Government  was  inclined  to  dissent; 
but  never  questioned  the  right  and  duty  of  a  Spanish  court  to  consider 
the  intent  and  effect  of  a  treaty.    *     *     * 

"iSTations  arc  bound  to  maintain  respectable  tribunals  to  which  the 
subjects  of  states  at  peace  may  have  recourse  for  the  redress  of  injuries 
and  the  maintenance  of  their  rights.  If  the  character  of  these  tribunals 
1)0  respectable,  impartial,  and  independent,  their  decisions  are  to  bo 
regarded  as  conclusive.    The  United  States  have  carried  the  principle 

39 


§  133.]  TREATIES.  [chap.  VI. 

of  acquiesceoce  iu  such  cases  as  far  as  any  nation  upou  earth ;  and  iii 
respect  to  the  decisions  of  Spanish  tribunals,  quite  as  frequently  perhaps 
as  in  respect  to  the  tribunals  of  any  other  nation.  In  almost  innumerable 
cases,  reclamations  sought  by  citizens  of  the  United  States  against  Spain 
for  alleged  captures,  seizures,  and  other  wrongs  committed  by  Spanish 
subjects,  the  answer  has  been,  that  the  question  has  been  fairly  tried 
before  an  impartial  Spanish  tribunal,  having  competent  jurisdiction,  and 
decided  against  the  claimant;  and  in  the  sufBciency  of  this  answer  the 
Government  of  the  United  States  has  acquiesced.  If  the  tribunal  bo 
competent;  if  it  be  free  from  unjust  influence;  if  it  be  impartial  and 
independent,  and  if  it  has  heard  the  case  fully  and  fairly,  its  judgment 
is  to  stand  as  decisive  of  the  matter  before  it. 

'•This  principle  governs  in  regard  to  the  decisions  of  courts  of  com- 
mon law,  courts  of  equity,  and  especially  courts  of  admiralty,  where 
proceedings  so  often  affect  the  rights  and  interests  of  the  citizens  of 
foreign  states  and  Governments." 

Mr.  "Webster,  Sec.  of  State,  to  Mr.  de  Argalz,  June  21, 1842.     MSS.  Notes,  Spain. 

The  informal  agreement  between  the  United  States  and  Great  Brit- 
ain limiting  their  respective  forces  on  the  lakes  is  conditioned,  so  far  as 
concerns  the  United  States,  upon  Great  Britain  maintaining  scrupulous 
neutrality  in  resjjcct  to  war,  civil  or  otherwise,  in  which  the  United 
States  is  concerned,  and  of  which  the  lakes  may  be  the  theater. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Oct.  24,  1864.     MSS.  Inst.,  Gr.  Brit. 

As  to  this  agreement,  see  supra,  §$  31,40. 

The  covenants  or  guarantees  in  a  treaty,  when  dx^pendent  on  certain 
conces.sions,  cannot  be  enforced  until  the  concessions  are  actually  made. 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Baxter,  Mar.  20,  1871.     MSS.  Inst.,  Cent.  Am. ; 
For.  Eel.,  1871.     Infra,  §  137a. 

By  the  treaty  of  March  20, 1833,  between  the  United  States  and  Siam, 
the  citizens  of  the  former  are  forbidden  to  import  or  sell  in  Siam  (except 
to  the  King)  "munitions  of  war."  As  to  the  meaning  of  this  term  "I 
feel  clear  that  a  nomen  generalissimum,  such  as  '  munitions  of  war'  is  far 
more  comprehensive  in  its  operation  than  would  be  any  group  of  speci- 
fications, no  matter  how  exhaustive.  The  rule,  as  you  well  know,  is 
that  the  introduction  of  specifications  operates  to  limit  even  general 
terms  which  may  precede  them,  and  in  this  view  I  cannot  but  think 
that  the  terms  '  fire-arms,  shot,  or  gunpowder,'  which  are  quoted  as  used 
in  the  treaty  between  Siam  and  Great  Britain  cover  a  much  more  re- 
stricted area  than  does  the  term  *  munitions  of  war,'  If,  for  instance, 
poisoned  arrows  were  called  for  in  Siam  as  weapons  likely  to  be  pecu- 
liarly' efficacious  in  Siamese  warfare,  they  would  be  excluded  under  the 
term  '  munitions  of  war,'  but  not  under  those  of  '  fire-arms,  shot,  or 
gunpowder.'  The  same  might  be  said  of  preparations  of  dynamite.  I 
hold,  therelbre,  that  the  term  '  munitions  of  war'  gives  all  the  protection 
30 


CHAP.  VI.]  CONSTRUCTION   AND    INTERPRETATION.  [§  133. 

to  Siam,  as  to  the  question  at  issue,  that  could  be  secured  by  an  enu- 
meration of  particulars,  no  matter  how  exhaustive." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  Jau.  7,  1886.     MSS.  Inst.,  Gr.  Brit. 
As  to  construction,  see  further,  App.,  vol.  iii,  $  131. 

When  there  is  a  treaty  giving  certain  privileges  as  to  repairing  armed 
vessels  of  a  belligerent,  such  treaty  will  be  enforced  by  the  neutral 
states,  though  the  favors  it  confers  on  the  belligerent  may  be  in  excess 
of  what  would  be  conferred  by  the  law  of  nations. 

Moodie  v.  The  Phcehe  Anne,  3  Dall.,  319.     See  Bee's  Adm.  R.,  40, 74. 

A  stipulation  in  a  treaty  that  neutral  bottoms  make  neutral  goods, 
does  not  imply  a  stipulation  that  enemies'  bottoms  make  enemies'  goods, 
the  two  propositions  being  distinct. 
The  Nereida,  9  Cranch,  388. 

The  doctrine  of  cypres  j^erformance  has  no  application  in  the  con 
struction  of  treaties. 

The  Amiable  Isabella,  6  Wheat.,  1. 

The  court  cannot  supply  a  casus  omissus  in  a  treaty  any  more  than  in 
a  law.  By  the  treaty  with  Spain  of  1795  free  ships  were  to  make  free 
goods;  and  in  the  17th  article  it  was  provided  that  a  passi^ort,  issued 
in  accordance  with  the  form  annexed  to  the  treaty,  should  be  conclusive 
proof  of  the  nationality  of  the  vessel.  There  being,  in  fact,  no  form 
annexed,  it  was  held  that  the  proprietary  interest  of  the  ship  must  be 
determined  according  to  the  ordinary  rules  of  prize  courts,  and  if 
shown  to  be  Si)anish  property,  that  the  cargo  was  protected  from  lia- 
bility. 

Ibid.,  1,  70. 

The  doctrine  of  a  performance  cy  pres,  so  just  and  appropriate  in  the 
civil  concerns  of  private  persons,  belongs  not  to  the  solemn  compacts 
of  nations,  so  far  as  judicial  tribunals  are  called  upon  to  interpret  or 
enforce  them. 
Ibid.,  1,  73. 

Stipulations  in  treaties  having  sole  reference  to  the  exercise  of  bellig- 
erent rights  cannot  be  applied  to  govern  cases  exclusively  of  another 
nature,  and  belonging  to  a  state  of  peace. 

The  Marianna  Flora,  11  Wheat.,  1. 

The  laws  applicatory  to  treaties  of  cession  do  not  apply  to  treaties 
for  the  recognition  of  independence,  such  as  that  of  1783,  with  Great 
Britain. 

Ilarconrt  r.  Gaillard,  12  Wheat.,  523. 

Foreign  territory,  under  the  Constitution  of  the  United  States,  may 
be  acquired  under  either  the  treaty-making  or  the  law-making  power. 

Ainorican  Ins.  Co.  ?•.  B.ilcs  of  Cotfou,  1  Pet.,  .''>42. 


§  133.]  TREATIES.  '  [chap.  VI. 

The  origiual  of  the  treaty  of  1819  with  Spain  being  in  the  Spanish 
language,  not  corresponding  precisely  with  the  original  in  English,  the 
language  of  the  former  is  to  be  taken  as  expressing  the  intent  of  the 
grantor  as  to  the  lands  granted  and  reserved.  The  King  of  Spain  was 
the  grantor;  the  treaty  was  his  deed  ;  the  exception  was  made  by  him  ; 
and  its  nature  and  effect  depended  on  his  intention,  expressed  by  his 
words,  in  reference  to  the  thing  granted  and  the  thing  reserved  and 
excepted  in  and  by  the  grant.  The  Spanish  version  was  in  his  words 
and  expressed  his  intention,  and,  though  the  American  version  showed 
the  intention  of  this  Government  to  be  different,  we  cannot  adopt  it  as 
the  rule  by  which  to  decide  what  was  granted,  what  excepted,  and 
what  reserved.  The  court  must  be  governed  by  the  clearly  expressed 
and  manifest  intention  of  the  grantor  and  not  the  grantee  in  private,  a 
fortiori  in  public,  grants. 

U.  S.  r.  Arredondo,  G  Pet.,  G91. 

As  to  which  of  the  conflicting  versions  of  a  treaty  is  to  prevail,  sec  wfra,  ^  IGi- 

When  a  treaty  is  executed  in  more  than  one  language,  each  language 
being  that  of  a  contracting  party,  each  document,  so  signed  and  attested, 
is  to  be  regarded  as  an  original,  and  the  sense  of  the  treaty  is  to  be 
drawn  from  them  collectivelv- 

Ibid.,  710. 

A  treaty  of  cession  is  a  deed  or  grant  by  one  sovereign  to  another, 
which  transfers  nothing  to  which  he  had  no  right  of  propertj^,  and  only 
such  right  as  he  owned  and  could  convey  to  the  grantee. 

Mitchel  r.  U.  S.,  9  Pet.,  711. 

The  stipulation  in  the  treaty  of  cession  of  Louisiana  for  the  protec- 
tion of  the  inhabitants  in  their  property,  &c.,  ceased,  hy  its  own  limita- 
tion, to  operate  when  the  State  was  admitted  into  the  Union. 
Citj'  of  New  Orleans  v.  Armas,  9  Pet.,  224. 

A  treaty  of  cession  is  to  be  construed  in  accordance  with  the  state  of 
things  at  the  time  existing. 

Strother  r.  Lucas,  12  Pet.,  410. 

The  term  "grant"  in  a  treaty  comprehends  not  only  those  which  are 
made  in  form,  but  also  any  concession,  warrant,  order,  or  permission 
to  survey,  possess,  or  settle,  whether  evidenced  by  writing  or  parol,  or 
presumed  from  possession;  and  that  in  the  term  "laws"  is  included 
custom  and  usage,  when  once  settled,  though  it  may  be  "comparatively 
of  recent  date,  and  is  not  one  of  those  to  the  contrary  of  which  the 
memory  of  man  runneth  not,  which  contributed  so  much  to  make  up 
the  common-law  code." 

SIrother  v.  L.icas,  12  Pet.,  43G. 

It  is  a  sound  principle  of  national  law,  and  applies  to  the  treaty- 
making  power  of  this  Government,  whether  exercised  with  a  foreign 


CHAP.  VI.]    CONSTRUCTION  AND  INTERPRETATION.   -      [§  133. 

jjiitiou  or  au  ludiau  tribe,  that  all  questious  of  disputed  boundaries 
may  be  settled  by  the  parties  to  the  treaty. 

Lattimer  v.  Poteet,  14  Pet.,  14. 

A  treaty  is  to  be  coustrued  so  as  to  exclude  fraud  and  to  make  its 
operation  consistent  with  good  faith. 

The  Amistad,  15  Pet.,  518. 

That  a  reseivatiou  in  a  treaty  may  operate  as  a  grant  of  lands,  see  U.  S.  v. 
Brooks,  10  How.,  442. 

It  has  been  settled  by  the  decisions  of  the  Sui^reme  Court  (1)  that 
compacts  between  Governments  or  nations,  like  those  between  individ- 
uals, should  be  interpreted  according  to  the  natural,  fair,  and  received 
acceptation  of  the  terms  in  which  they  are  expressed ;  (2)  that  the 
obligation  of  such  compacts,  unless  suspended  by  some  condition  or 
stiifulation  therein  contained,  commences  with  their  execution  by  the 
authorized  agents  of  the  contracting  parties,  and  that  their  subsequent 
ratification  by  the  principals  themselves  has  relation  to  the  period  of 
signature;  (3)  that  any  act  or  proceeding,  therefore,  between  the  sign- 
ing and  ratification  of  a  treaty,  by  either  of  the  contracting  parties,  in 
contravention  of  the  stipulations  of  the  compact,  would  be  a  fraud  upon 
the  other  party,  and  could  have  no  validity  consistently  with  a  recogni- 
tion of  the  compact  itself;  (4)  that  a  nation  which  has  ceded  away  her 
sovereignty  and  dominion  over  a  territory,  can,  with  respect  to  that 
territory,  rightfully  exert  no  power  by  which  the  dominion  and  sov- 
ereignty so  ceded  would  be  impaired  or  diminished. 
U.  S.  r.  D'Auterive,  10  How.,  609. 

A  guarantee  in  a  treaty  of  cession  of  vested  rights  in  tLe  ceded  ter- 
ritory covers  only  rights  which  emanated  from  a  prior  rightful  sover- 
eign. 

U.  S.f.  Pillerin,  13  How.,  0. 

Such  a  guarantee  covers  inchoate  as  well  as  matured  rights. 

Delassus  v.  U.  S.,  9  Pet.,  117  ;  Strotherr.  Lucas,  12  Pet.,  410. 
That  benefits  granted  as  equivalents  by  a  treaty  are  not  to  be  considered  as 
donations,  see  Forsyth  v.  Reynolds,  15  How.,  :5."8. 

Whether  a  sovereign  liad  tlie  power,  in  making  a  treaty,  to  annul  a 
grant,  cannot  be  examined  in  the  courts  of  the  United  States,  the  Presi- 
dent and  Senate  having  treated  with  him  as  having  that  power. 
Clark  V.  Bradcni,  IG  How.,  (J35. 

Where  one  of  the  parties  to  a  treaty  at  the  time  of  its  ratification 
annexes  a  written  declaration  exj)laining  ambiguous  hiiiguage  in  the 
instrument,  or  adding  a  new  and  distinct  stipulation,  and  tlie  treaty  is 

S.  Mis.  KJi' — VOL.  II '■>  33 


§  133.]  TREATIES.  [chap.  VI. 

afterwauls  ratified  by  tlu'  otliin-  party  with  tbc  declaration  attached  to 
it,  and  the  ratifications  duly  oxcliai)<;ed,  the  declaration  thus  annexed 
is  a  part  of  the  treaty,  and  as  biuding  and  obligatory  as  if  it  were  in- 
serted in  the  body  of  the  instrument. 
Ibid. 

A  treaty  giving  certain  rights  of  succession  to  realty  to  subjects  of 
a  foreign  sovereign,  is  not  retroactive  so  as  to  affect  the  succession  of 
a  person  who  died  before  the  treaty. 

Picvost  r.  Grt'onanx,  19  How.,  1. 

In  the  fnltillinent  of  treaty  stipulations  a  liberal  si)irit  should  be  ob- 
served. 

U.  S.  V.  Ausuisola,  I  Wall.,  :35'->. 

A  treaty  will  be  so  construed  as  to  give  iuU  operation  lo  rights 
granted  by  it,  and  when  there  are  two  constructions  equally  applicable 
to  it,  the  most  liberal  will  be  preferred. 

llancnstein  r.  Lynhaiii,  100  U.  S.,  48:?. 

The  term  "  validity,"  as  applied  to  treaties,  adinits  of  two  descrij)- 
tions— necessary  and  voluntary.  By  the  former  is  meant  that  which 
results  from  the  treaties  having  been  made  by  persons  authorized  by, 
and  for  purposes  consistent  with,  the  Constitution.  By  voluntary  valid- 
ity, is  meant  that  validity  which  a  treaty,  voidable  by  reason  of  vio- 
lation by  the  other  party,  still  continues  to  retain  by  the  silent  acquies- 
cence and  will  of  the  nation.  It  is  voluntary,  because  it  is  at  the  will 
of  the  nation  to  let  it  remain  or  to  extinguish  it.  The  principles  which 
govern  and  decide  the  necessary  validity  of  a  treaty  are  of  a  judicial 
nature,  while  those  on  which  its  voluntary  validity  depends  are  of  a 
political  nature. 

Jones  V.  Walker,  2  raiiic,  (l.SH. 

By  a  principle  of  international  law,  on  a  transfer  of  territory  by  one 
nation  to  another,  the  political  relations  between  the  inhabitants  of 
the  ceded  country  and  the  former  Government  are  clianged,  and  new 
ones  arise  between  them  and  the  new  Government.  The  manner  in 
which  this  is  to  be  effected  is  ordinarily  the  subject  of  treaty.  The 
contracting  parties  have  the  right  to  contract  to  transfer  and  receive 
respectively  the  allegiance  of  all  the  native-born  citizens;  but  the  natu- 
ralized citizens,  who  owe  allegiance  purely  statutory,  are,  w^hen  released 
therefrom,  remitted  to  their  original  status. 

Tobin  r.  Walkinsliaw,  MeAllister,  ISC). 

That  construction  of  a  treaty  most  favorable  to  its  execution,  as  de- 
signed by  the  parties,  will  be  preferred. 

U.  S.  r.  Payne,  2  McCrary,  289;  8  Fed.  Rep.,  863. 
34 


CHAP.  Aa.]    CONSTRUCTION  AND  INTERPRETATION.        [§  133. 

A  construction  of  a  treaty  acted  on  by  the  Executive  Department 
will  be  accepted  by  the  judiciary,  when  relating-  to  matters  political, 
unless  such  construction  be  plainly  inadmissible. 
Castro  V.  De  Uriarte,  16  Fed.  Rep.,  93. 

Tonnage  dues  do  not  fall  within  a  provision  that  goods  imported  in 
vessels  of  one  contracting  nation  shall  not  be  higher  than  those  im- 
ported in  vessels  of  the  other  contracting  nation. 

1  Op.,  155,  Breckeuridgc,  1800. 

Technical  rules  of  construction  ought  not  to  bo  applied  to  treaties 
with  the  Indians. 

2  Op.,  465,  Taney,  1831. 

In  the  construction  of  treaties,  the  general  doctrine  is  that  any  special 
advantage  conceded  by  a  party  under  any  one  article  is  in  consideration 
of  all  the  advantages  enjoyed  by  the  same  party  under  that  and  all 
other  articles  of  the  treaty. 

6  Op.,  148,  Gushing,  1853. 

Articles  of  reciprocity,  constituting  mutual  and  correlative  engage- 
ments, do  not  come  within  such  expressions  as  ''  favor,"  or  "  freely  if 
the  concessions  w^ere  freely  made,"  or  "  if  the  concessions  were  condi- 
tional on  allowing  the  same  compensation," 
Jbid. 

A  treaty  to  whose  operation,  in  whole  or  in  part,  legislation  is  on  its 
face  a  prerequisite,  does  not  bind,  so  far  as  concerns  such  provisions, 
until  the  requisite  legislation  takes  place  ;  thougii,  from  the  time  it  is 
proclaimed,  it  may  take  effect  as  a  national  compact. 
0  Op.,  750,  Cashing.     See  supra,  ^  132. 

AVhen  a  river  is  the  line  of  arcifinioiis  boundary  between  two  nations, 
by  a  treaty,  its  natural  channel  so  continues,  notwithstanding  any 
changes  of  its  course  by  accretion  or  decretion  of  either  bank ;  but  if 
the  course  be  changed  abruptly  into  a  new  bed  b}'  irruption  or  avulsion, 
then  the  river-bed  becomes  the  boundary.  [The  principle  applied  to 
tlie  report  of  the  commi.<sioners  for  determining  the  boundary  between 
tlie  Mexican  Eepublic  and  the  United  States.] 

8  Op.,  175,  Cashing,  1856. 

^Vhere,  by  a  convention,  it  was  agreed  that  all  moneys  awarded  by 
the  commissioners  under  that  convention  on  account  of  any  claim  should 
be  paid  by  one  Government  to  the  other,  the  moneys  found  due  from 
th(;  foreign  Govoinment  to  claimants  who  were  citizens  of  the  United 
States  were  i)roperly  ])aid  to  the  Secretary  of  State,  whose  duty  it  was 
to  have  the  same  paid  to  those  entitled  to  receive  them. 

10  Op.,  31,  Ikit.K,  1861. 

35 


§  133.]  TREATIES.  [CIIAP.  VI. 

The  \voi(l.s  "coiitii  iiu'tl  l)y  law"  mean  (•oiiliriHatiuu  by  llic  act  of  that 
l)Ower  which  aiuk'rour  system  cMiacts  hiws.  A  confunation  by  treaty 
is  a  coDfiriuatioii  by  hiw,  imisinuch  as  a  treaty  is  to  be  regarded  as  au 
act  of  the  legishiture,  whenever  it  operates  without  the  aid  of  a  legis- 
lative provisioQ. 

10  Op.,  507,  Coffey,  ad  int.,  ISGIJ. 

Treaties  are  subjected  to  the  following  general  rules  which  govern 
all  contractual  engagements : 

(1)  There  must  be  a  concurrence  of  minds  to  one  and  the  same  thing. 

(1:5)  The  interpretation  of  obscure  terms  in  a  treaty  is  a  matter  of 
fact,  as  to  which  extrinsic  evidence  n)ay  be  taken  for  the  purpose  of 
explaining  objective  obscurity. 

(3)  Construction  of  treaties  is  a  matter  of  law,  to  be  governed  by  the 
same  rules  mutatis  jniitatuUs^  as  prevail  in  tlie  construction  of  contracts 
aud  statutes. 

(4)  As  contracts  u)ay  be  modified  and  rescinded,  so  may  treaties. 

(5)  Immoral  stipulations  are  as  void  in  treaties  as  they  are  in  con- 
tracts. 

(G)  "  Construction "  is  to  be  distinguished  from  "  interpretation," 
"  Construction  "  gives  the  general  sense  of  a  treaty,  and  is  applied  by 
rules  of  logic  ;  "  interpretation  "  gives  the  meaning  of  particular  terms, 
to  be  explained  by  local  circumstances  and  by  the  idioms  the  framers 
of  the  treaty  had  in  mind. 

(7)  If  two  meanings  are  admissible,  that  is  to  be  preferred  which  the 
party  i)roposiug  the  clause  knew  at  the  time  to  be  that  which  was  held 
by  the  i)arty  accepting  it. 

Treaties  are  distinguishable  from  contracts  as  follows: 

(1)  Contracts  (unless  we  regard  marriage  as  a  contract)  are,  in  all 
cases,  the  subjects  of  a  suit  for  debt  or  damages,  or  for  a  specific  thing, 
lint  no  such  suit  lies  on  breach  of  treaty. 

(2)  Contracts  can  only  be  vacated  or  rescinded  by  consent,  or  by  the 
action  of  a  court.  But  this  is  not  necessarily  the  case  with  a  treaty. 
There  is  no  court  which  can  be  appealed  to  to  dissolve  it,  and  when  one 
party  violates  its  terms  the  practice  is  for  the  other  party  to  declare  it 
not  to  be  any  longer  binding. 

(3)  While  a  contract  may  be  annulled  on  the  ground  of  fraudulent 
influence  exercised  by  strength  over  weakness,  such  a  reason  cannot 
be  set  ui)  for  regarding  a  treaty  as  a  nullity,  since  all  nations  are  sup- 
])osed  to  stand  on  the  same  tooting,  with  equal  op])ortunities  of  detect- 
ing fraud,  and  there  are  many  cases  of  finesse  and  false  coloring  or  sup- 
l)ression  of  facts  which  would  avoid  contracts,  which  would  not,  mutidis 
muta7i(Ils,  avoid  a  treaty.  If  snpjyressio  vcri  abrogated  treaties  to  the 
extent  it  abrogates  contracts,  few  treaties  would  stand. 

(4)  A  treaty  based  u[)on  a  war  accepts  the  results  determined  by  the 
war,  unless  otherwise  provided,  while  a  contract  does  not  necessarily 
assume  the  existing  relations  of  the  parties  as  a  basis.  "The  iiti  jwh 
sidetis  is  the  basis  of  every  treaty  of  peace,  unless  it  be  otherwise  agreed. 
Peace  gives  a  final  and  i)erfect  title  to  cai)tures  without  condemnation, 
and,  as  it  ibrbids  all  force,  it  destroys  all  hopes  of  recovery  (of  vessels) 
as  much  as  if  the  vessel  was  carried  infra praesidia  and  condemned." 

1  Kent's  Com.,  173,  citing  TLe  Legal  Tender,  reported  in  Wheat.  Dig.,  302; 
The  Schooner  Sophie,  6  Rob.  Ad.,  138. 

36 


CHAP.  VI.]  FAVORED   NATION.  [§  134. 

(5)  A  consideratiou  is  essential  to  give  effect  to  acoutract,  but  it  is 
possible  to  conceive  of  a  treatj'  wbicli  has  no  consideration. 

Wharfc.  Com.  Am.  Law,  §  157. 

As  to  the  position  of  the  United  States  iu  reference  to  the  effect  of  silence  in 
treaties,  see  3  Pliill.  Int.  Law  {M  ecL),  799. 

On  the  question  of  repugnancy,  the  following  rules  are  laid  down  by 
President  Woolsey  (Int.  Law,  §  109) : 

"  1.  That  earlier  clauses  are  to  be  explained  by  later  ones,  which  were 
added,  it  is  reasonable  to  suppose,  for  the  sake  of  explanation,  or  which 
at  least  express  the  last  mind  of  the  parties.  So  also  later  treaties  ex- 
plain or  abrogate  older  ones. 

"  2.  Special  clauses  have  the  preference  over  general,  and  for  the 
most  part  prohibitory  over  permissive. 

''  In  treaties  made  with  different  parties  the  inquiry  in  cases  of  con- 
flict touches  the  moral  obligation  as  well  as  the  meaning.  Here  the 
earlier  treaty  must  evidently  stand  against  the  latter,  and  if  jiossible, 
must  determine  its  import  where  the  two  seem  to  conflict. 

"  In  general,  conditional  clauses  are  inoperative,  as  long  as  the  con- 
dition is  unfulfilled;  and  are  made  null  when  it  becomes  impossi- 
ble. Where  things  promised  iu  a  treatj^  are  incompatible,  the  promisea 
ma^'  choose  which  he  will  demand  the  performance  of,  but  here  and 
elsewhere  an  act  of  expediency  ought  to  give  way  to  an  act  of  justice. 

"  A  treaty  of  cession  is  a  deed  of  the  ceded  territory  by  the  sovereign 
grantor,  and  the  deed  is  to  receive  an  equitable  construction.  The  ob- 
ligation 01  the  new  power  to  i^rotect  the  inhabitants  in  the  enjoyment 
of  their  property  is  but  the  assertion  of  a  principle  of  natural  justice." 

See  Mr.  J.  C.  B.  Davis's  Notes,  &c.,  citing  Soulard  v.  U.  S.,  4  Pet.,  511 ;  Delassus 
V.  U.  S.,  9  Pet.,  117 ;  Mitchel  v.  U.  S.,  ibid.,  711 ;  Smith  v.  U.  S.,  10  Pet.,  326. 

The  effect  of  coercion  in  vacating  a  treaty  is  discussed  in  another  sec- 
tion, infra,  §  130. 

V.  FAVORED  NATION. 

§134. 

"  It  may  fairly  be  considered  as  the  rational  and  received  interpre- 
tation of  the  diplomatic  term  gentis  amicissimce  (most  favored  nation) 
that  it  has  not  in  view  a  nation  unknown  in  many  ca.ses  (as  was  the 
United  States  at  the  time  when  the  older  treaties  containing  the  phrase 
were  used)  at  the  time  of  using  the  term,  and  so  dissimilar  in  all  cases 
as  to  furnish  no  ground  of  just  reclamation  to  any  nation." 

Mr.  Jefferson,  Sec.  of  State,  Report  to  the  President,  Mar.   18,  1792.     7  JeflT. 
Works,  584 ;  1  Am.  St.  Pap.  (For.  Rel.),  255. 

"Though  treaties,  which  merely  exchange  the  rights  of  the  most  favored 
nations,  are  not  without  all  inconvenience,  yet  they  have  their  conven- 
iences also.  It  is  an  important  one  that  Ihcy  leave  each  party  free  to 
make  what  internal  regulations  they  please,  and  to  give  what  prefer- 
••nccs  tliey  find  expedient,  to  native  merchants,  vessels,  and  j)ro(luctions. 
And  as  wv,  already  Iiuvt^  treaties  on  this  basis  witli  France,  Holland, 
Sweden,  and  I'rusia,  the  two  Coi-niei-  of  which  are  perpetual,  it  will  b«i 

37 


§  134.]  TREATIES.  [chap.  VI. 

but  small  acUlitioual  iMiibarrassment  to  extend  it  to  Spain.  On  the  con- 
trary, we  are  sensible  it  is  ri<,'lit  to  i)lac;e  that  nation  on  the  most  favored 
footing,  whether  we  have  a  treat}'  with  them  or  not,  and  it  can  do  us  no 
harm  to  secure  by  treaty  a  reciprocation  of  the  right." 

Report  of  Mr.  Jefferson,  Mar.  18,  1792.     7  Jeff.   Worts,  G87 ;    1  Aiu.  St.  Pap. 
(For.  Rel.),2oG. 

Mr.  J.  Q.  Adams,  in  his  note  to  Mr.  Hyde  de  Xeuville  of  December  23, 
1817  (MSS.  Is^otes,  France,  Cong.  Doc.  01,  18th  Cong.,  2d  sess  ),  took 
the  ground  that  the  "favored  nation"  chinse  in  the  treaty  of  1803  with 
France  only  covered  gratuitous  favors,  and  did  not  touch  concessions  for 
equivalents,  exjiress  or  im])lied,  and  that  any  other  view  would  be  in- 
consistent with  the  provision  of  the  Federal  Constitution  which  pre- 
scribes that  ''all  duties,  imposts,  and  excises  shall  be  uniform  in  the 
United  States,  and  that  no  preference  shall  be  given  by  any  regulation 
of  commerce  or  revenue  to  the  ports  of  one  State  over  those  of  another.' 

Lawrence's  Wbeaton,  494.    See  at  large,  2  Lyman's  Dip.  U.  S.,  chap.  vi. 

"The  mutual  stipulation  of  being  treated  as  the  most  favored  nation 
is  not,  in  all  the  treaties  between  France  and  the  United  States,  accom- 
panied by  the  express  declaration  that  the  favor  granted  to  a  third  party 
shall  be  extended  to  France  or  the  United  States  gratuitously  if  the 
grant  is  gratuitous,  and  upon  granting  the  same  compensation  if  it  be 
conditional." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  tie  Neiivillc,  Mar.  29,  1821.     MSS.  Notes,  For. 

Leg.     See  further,  as  to  meaning  of  term,  same  to  same,  June  15, 1821 ;  ibid. 
As  to  effect  of  term  "favored  nation"  in  treaty  with  France  of  180;},  sec  Mr. 

Gallatin's  note  to  Visconnt  Chate.auhrand,  Feb.  27,  1823,  quoted  infra,  ^ 

148  ;  and  see  also  Lawrence's  Wheaton,  493,  notes. 

"The  rule  of  the  most  favored  nation  may  not  be,  and  scarcely  ever 
is,  equal  in  its  operation  between  two  contracting  parties.  It  could 
only  be  equal  if  the  measure  of  voluntary  concession  by  each  of  them 
to  the  most  favored  third  power  were  precisely  the  same;  but  as  that 
rarely  happens,  by  referring  the  citizens  of  two  contracting  powers  to 
such  a  rule,  the  fair  competition  between  them,  which  ought  always  to 
be  a  primary  object,  is  not  secured,  but,  on  the  contrary,  those  who 
belong  to  the  nation  which  has  shown  least  liberality  to  other  nations 
are  enabled  to  engross  almost  the  entire  commerce  and  navigation  car- 
ried on  between  the  two  contracting  powers.  The  rule  of  the  most 
favored  nation  is  not  so  simple  as  the  proposed  substitute  (that  of  a 
treaty  of  reciprocity,  which  Mr.  Poinsett  was  instructed  to  negotiate). 
In  order  to  ascertain  the  quantum  of  favor  which,  being  granted  to  the 
commerce  and  navigation  of  one  nation,  is  claimed  by  another  in  virtue 
of  a  treaty  stipulation  embracing  that  principle,  it  is  necessary  that  the 
claimant  should  be  accurately  informed  of  the  actual  state  of  the  com- 
mercial relations  between  the  nation  on  which  the  claim  of  equal  favor 
is  preferred  and  all  the  rest  of  the  commercial  world.  A  knowledge  of 
those  relations  must  be  sometimes  sought  after  in  numerous  treaties, 
38 


CHAP.  VI.]  FAVORED    NATION.  [§  13i. 

statutes,  orders,  decrees,  aud  other  regulations,  and  is  often  of  very 
difficult  attainment.  When  acquired  it  is  not  always  very  easy  to  dis- 
tinguish between  what  was  a  voluntary  grant  aud  that  which  was  a 
concession  by  one  party  for  an  equivalent  yielded  by  the  other.  Some- 
times the  equivalent  for  the  alleged  favor  proceeding  from  the  one  party 
may  be  diffused  throughout  all  the  stipulations  in  the  treaty  by  the 
other,  and  is  to  be  extracted  only  after  a  careful  view  and  comparison 
of  the  whole  of  them.  oS^ot  unfrequently  the  equivalent  may  not  even 
be  clearly  deducible  from  the  instrument  itself  conveying  the  supposed 
favor.  Peculiar  considerations  may  lead  to  the  grant  of  what,  on  a  first 
impression,  might  be  conceived  to  be  a  voluntary  favor,  but  which  has 
really  been  founded  upon  a  received  equivalent;  aud  these  considera- 
tions may  sometimes  a]>ply  to  the  entire  commerce  and  navigation  of  a 
country,  and  at  others  to  particular  x^orts  only." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Poinsett,  Mar.  26,  1825.     MSS.  Inst.,  Ministers. 

A  covenant  to  give  privileges  granted  to  the  "most  favored  nation" 
only  refers  to  gratuitous  i)rivileges,  and  does  not  cover  privileges  granted 
on  the  condition  of  a  reciprocal  advantage. 

Mr.  Livingston,  Sec.  of  State,  to  President  Jackson,  Jan.  6,  1832.     MSS.  Report 

Book. 
To  same  effect,  see  Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Bingham,  June  11, 

1884.     MSS.  Inst.,  Japan,  quoted  sitjira,  §  G8. 

"  Your  dispatch  Xo.  43,  of  the  8th  ultimo,  has  been  received.  You 
report  that  Mr.  Carter,  the  special  envoy  from  Ilawaii  to  England  and 
Germany,  had  succeeded  in  inducing  the  German  Government  to  yield 
the  point  assumed  by  those  Governments,  that  the  most  favored  nation 
clause  in  their  treaties  with  Hawaii  entitled  them  to  equal  privileges  in 
regard  to  imports  with  those  obtained  by  the  United  States  by  the  re- 
ciprocity treaty  with  the  same  country,  and  that  no  definite  understand- 
ing had  been  reached  with  England,  although  it  was  probable  that  the 
propo.sition  made  by  that  Government  would  be  accepted.  You  also 
report  that  there  exists  among  the  natives  a  suspicion  that  the  United 
States  desire  to  annex  the  Hawaiian  Islands,  which  is  encouraged  and 
made  use  of  by  the  opposition  party. 

"  In  reply  I  have  to  state  that  the  note  which  you  addressed  to  the 
minister  for  foreign  affairs,  claiming  that  by  the  ♦  parity  clause  of  the 
ordinary  form  of  treaty '  other  nations  were  not  entitled  to  the  same 
privileges  as  were  conceded  to  the  United  States  by  the  reciprocity 
treaty  with  Haw^aii,  is  in  accordance  with  the  views  of  this  Department; 
and  that  the  assurance  given  by  that  officer  in  his  reply,  that  the  Gov- 
ernment of  Hawaii  would  take  care  that  the  integrity  of  the  treaty 
should  not  be  impaired  in  any  respect,  is  satisfactory,  and  it  is  hoped 
tliat  this  i)romise  may  be  strictly  carried  out. 

39 


§  134.]  TREATIES.  [ClIAP.  VI. 

"You  will  ciuleavor  to  disabuse  the  minds  of  those  who  iuipute  to 
the  United  States  any  idea  of  further  projects  beyond  the  present 
treaty." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Coiuly,  Aug.  G,  1878.     MSS.  Inst.,  Hawaii; 
For.  Rcl.,  1878. 

The  following  is  the  inclosure  in  dispatch  No.  43,  above  noticed : 

"  I  have  the  honor  to  submit  to  His  Majesty's  Government,  through 
your  excellency,  my  opinion  that  the  integrity  of  the  treaty  of  recipro- 
city between  the  United  States  and  the  Hawaiian  Island  is  threat- 
ened. 

"Allow  me  to  call  your  attention  to  a  clause  of  Article  IV  of  the  treaty, 
as  follows : 

"  '  It  is  agreed  on  the  part  of  His  Hawaiian  Majesty  that  so  long  as 
this  treaty  shall  remain  in  force  he  will  not  *  *  *  make  any  treaty 
by  which  any  other  nation  shall  obtain  the  same  privileges  relative  to 
the  admission  of  any  articles  free  of  duty  hereby  secured  to  the  United 
States.' 

"This  stipulation  is  in  the  nature  of  a  valuable  consideration  to  be 
l)aid  by  one  party  to  the  other,  as  one  of  the  causes  which  move  the  con- 
tracting parties  to  enter  into  an  agreement.  The  failure  to  pay  it 
would  be  a  breach  which  would  endanger,  if  not  destroy,  the  whole  com- 
pact. 

"  No  treaty  in  existence  at  the  time  this  compact  was  entered  into 
secured  to  any  other  nation  the  privileges  as  to  the  admission  of  certain 
articles  free  of  duty,  which  have  been  guaranteed  to  the  United  States 
by  this  treaty.  These  privileges  were  secured,  not  through  any  general 
treaty  rights  or  stipulations,  but  by  giving  certain  valuable  considera- 
tions in  a  special  treaty  of  reciprocal  covenants.  The  concession  of 
these  privileges  to  the  United  States  cannot  therefore  form  any  just 
basis  for  a  claim  to  like  privileges  by  any  other  nation,  under  the  parity 
clause  of  the  ordinary  form  of  treaty.  The  uttermost  that  might  be  con- 
(;eded  under  such  parity  clause  would  be  the  claim  to  purchase  the 
same  immunities  through  special  treaty,  upon  like  terms  with  those 
agreed  upon  between  the  United  States  and  the  Hawaiian  Islands. 
IJut  this  is  in  the  nature  of  the  case  impossible.  Those  concessions  by 
the  United  States  which  are  of  the  greatest  value  to  the  islands  under 
this  tieaty  would  be  of  no  value  whatever  from  other  powers,  whose 
great  distance  from  the  best  markets  for  island  products  would  be  as 
effectual  a  bar  to  the  enjoyment  of  reciprocity  as  a  prohibitory  edict. 
The  eifect  of  such  an  arrangement  would  be,  if  attempted  with  other 
powers  on  the  same  basis,  that  the  United  States  would  remit  some 
millions  of  duty  on  island  products  during  the  seven  years,  in  order 
that  other  nations  might  not  pay  duty  to  His  Hawaiian  jNIajesty  on 
goods  brought  here  to  compete  with  American  products. 

"  This  is  the  precise  thing  the  treaty  does  not  intend.  Its  intention 
is  to  secure  exclusive  benefits  to  both  contracting  parties  through 
special  privileges  granted  by  each  to  the  other.  To  admit  the  claim  of 
a  third  ])arty  to  come  in  and  enjoy  all  the  benefits  conceded  by  both 
l)rincipals,  without  any  pnyment  in  equivalent  special  privileges  to 
either,  would  be  an  unprecedented  thing. 

"  It  would  be  strange  if  the  Hawaiian  Government  and  people  should 
fail  to  take  in  the  advantages  secured  to  them  l)y  the  treaty,  and  should 
suffer  its  integrity  to  be  impaired.     "While  I  cannot  bolievt;  that  there 

40 


CHAP,  vl]  favored  nation.  t§  134. 

is  real  dauger  of  suck  a  result,  yet  there  arc  circumstauces,  not  neces- 
sary to  detail  particularly,  which  may  excuse  this  friendly  and  caution- 
ary mention  of  some  of  the  rights  and  privileges  of  the  United  States 
under  the  treaty." 

"While  this  Government  cannot  agree  with  that  of  Mexico,  tbat 
under  the  provisions  of  the  most  favored  nation  clause,  another  nation 
becomes  entitled  to  privileges  granted  by  a  reciprocity  treaty,  still  as 
there  are  various  considerations  affecting  the  question  as  now  x^resented, 
I  content  myself  with  a  courteous  denial  that  the  most  favored  nation 
clause  applies  to  reciprocity  treaties,  without  now  entering  into  any 
argument  on  the  subject." 

Mr.   I'relingliuysen,  Sec.  of  State,   to  Mr.  Eomero,  May  2,  1884.     MSS.  Notes, 
Spaiu. 

"  Mr.  Eeed's  Xo.  2G3,  of  the  10th  instant,  informs  the  Department  of 
an  interpellation  made  in  the  Senate  by  the  Marquis  de  Muros  in  regard 
to  the  prosjiect  of  negotiations  between  Spain  and  the  United  States 
for  a  commercial  treaty,  and  the  response  of  the  minister  of  state  there- 
to. It  appears  that  Seiior  Elduayen  deems  a  specially  favoring  treaty 
impracticable  at  present  in  view  not  only  of  the  distressing  condition 
of  the  Antillean  finances,  but  because  he  holds  that  other  nations  hav- 
ing the  most  ftivored  [nation]  clause  in  their  treaties  with  Spain  would 
be  entitled  to  all  the  benefits  of  any  special  arrangement  with  the  United 
States. 

"The  minister's  statements  cannot  have  failed  to  impress  you  with 
some  surprise.  You  are  aware  that  this  Government  has  always 
assumed  that  Spain  held  the  same  view  as  ourselves  respecting  the 
effect  of  a  reciprocity  treaty  in  connection  with  the  most  favored 
nation  clause  in  other  treaties.  This  country  has  that  clause  in  many 
of  its  compacts  with  foreign  states,  but  it  has  never  occurred  to  them 
or  to  us  to  suppose  that  we  were  thereby  constrained  to  grant  to  those 
treaty  powers  without  equivalent  the  privileges  which  we  had  bj'  special 
engagements  stipulated  to  concede  to  countries  like  Hawaii  and  Canada, 
for  a  valuable  consideration." 

Mr.   Frclinglmyscu,  Sec.   of  State,  to  Mr.  Foster,  June  28,  1884.      MSS.  Inst., 
Spain. 

"I  had  the  honor  to  receive  in  due  season  your  note  of  June  19  last, 
touching  the  application  of  the  provisions  of  the  fourteenth  section  of 
the  shipping  act,  approved  June  20,  1884,  in  respect  of  the  collection  of 
tonnage  tax,  to  vessels  of  Belgium  coming  from  ports  of  that  country  to 
portsof  the  United  States,  under  the  "mostfavored  nation"  clause  of  the 
existing  treaty  of  1875  between  the  United  States  and  Belgium. 

"The  importance  of  the  questions  involved  in  the  claim  of  the  Belgian 
Government,  and  in  lilic  claims  preferred  by  otlier  Governments,  has  led 
to  the  submission  of  the  entire  subj(!ct  to  the  judgment  of  the  Attorney- 
Gfncral. 

41 


§  134.]  TREATIES.  [cnAP.  VI. 

"The  concUisioiis  of  the  Department  ofJu-stice,  after  a  earefiil  exam- 
ination of  the  premises,  are  that — 

u  I  rj^iyQ  discrimination  as  to  tonnage  duty  in  favor  of  vessels  sailing  from 
the  regions  mentioned  in  the  act,  and  entered  in  our  ports  is,  I  think, 
purely  geographical  in  character,  inuring  to  the  advantage  of  aiiy  vessel 
of  any  power  that  may  choose  to  fetch  and  carry  between  this  country 
and  any  port  embraced  by  the  fourteenth  section  of  the  act.  I  see  no 
warrant,  therefore,  to  claim  that  there  is  anything  in  the  "most  favored 
nation''  clause  of  the  treaty  between  this  country  and  the  powers  men- 
tioned that  entitles  them  to  have  the  i)rivileges  of  the  fourteenth  section 
extended  to  their  vessels  sailing  to  this  country  from  ports  outside  of  the 
limitation  of  the  act.' 

"  These  conclusions  are  accepted  by  the  President,  and  I  have,  accord- 
ingly, the  honor  to  communicate  them  to  you  as  fully  covering  the  i)oints 
presented  in  your  note  of  the  19th  of  June  last." 

Mr.  Bayard,  Sec.  ofStatc,  to  Mr.  De  Bounder,  Nov.  7,  1885.  MSS.  Inst.,  Bcljiiinn ; 
For.  Rel.,  1F85.    See  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Tree,  Aug.  1,  1885;  ibid. 

"In  its  commercial  aspects  the  expediency  of  an  unqualified  favored 
nation  clause  is  questionable.  The  tendency  is  towards  its  formal  quali- 
fication, by  recognizing  in  terms  (what  most  nations  hold  in  fact  and  in 
practice,  whether  the  condition  be  expressed  in  the  clause  or  not)  that 
propinquity  and  neighborliness  may  create  special  and  peculiar  terms 
of  intercourse  not  equally  open  to  all  the  world;  or  by  providing  that 
the  most  favored  treatment,  when  based  on  special  or  recii)rocal  con 
cessions,  is  only  to  be  extended  to  other  powers  on  like  conditions. 

"You  will  doubtless  have  understood  that  where  the  words  *  qualified' 
and  'unqualified'  are  •  *  *  applied  to  the  most  favored  nation 
treatment,  they  are  used  merely  as  a  convenient  distinction  between 
the  two  forms  such  a  clause  generally  assumes  in  treaties,  one  contain- 
ing a  proviso  that  any  favor  granted  by  one  of  the  contracting  parties 
to  a  third  party  shall  likewise  accrue  to  the  other  contracting  party, 
freely  if  freely  given,  or  for  an  equivalent  if  conditional — the  other  not 
so  amplified.  This  proviso,  when  it  occurs,  is  merely  explanatory,  in- 
serted out  of  abundant  caution.  Its  absence  does  not  impair  the  rule 
of  international  law  that  such  concessions  are  only  gratuitous  (and  so 
tranf;ferable)  as  to  third  parties  when  not  based  on  reciprocity  or  mu 
tually  reserved  interests  as  between  the  contracting  parties.  This 
ground  has  been  long  and  consistently  ma'utained  by  the  United  States. 
It  was  held  by  two  of  mj-  predecessors,  Mr.  Clay  and  Mr.  Livingston, 
that  a  covenant  to  extend  to  third  parties  privileges  granted  to  a  most 
favored  nation  only  refers  to  gratuitous  privileges  and  does  not  cover 
privileges  granted  on  the  condition  of  a  reciprocal  advantage,  i.  e.,  fur 
a  consideration  expressed." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Hubbard,  July  17,  1886.  MSS.  lust.,  Cbiua. 
See  Mr.  Bayard  to  Mr.  Manning,  Nov.  7,  1885.  Same  to  same,  June  16, 1886. 
MSS.  Dom.  Let.  See  also  Mr.  Hay  to  Chen  Lan  Pin,  Aug.  23,  1880,  quoted 
iiifia,  ^  144. 

42 


CHAP.  VI.]       SUBSEQUENT  WAR,  EFFECT  OF,  [§  135. 

From  excessive  caution  the  limitatiou  "gratuitous"  or  kiudred  limita 
tioDS  are  sometimes  inserted  before  "favored  nation"  in  recent  treaties. 
But  this  does  not  in  any  way  derogate  from  the  position  that  privileges 
transferable  uuder  the  term  "favored  nation"  are  only  such  privileges 
as  are  gratuitous. 

See  Lawrence's  Wlicatou,  493. 

Engagements  of  extradition,  whether  of  fugitives  from  justice  or  from 
service,  stand  in  each  case  on  j)articular  stipulations  of  treaty,  and  arc 
not  to  be  inferred  from  the  "favored  nation"  clause  in  treaties. 

6  Op.,  148,  Cushiug,  185:3. 

Under  the  "favored  nation"  clause  of  the  treaty  with  Hawaii,  the 
consular  courts  of  the  Cnited  States  in  Honolulu  have  exclusive  right 
of  determining  disputes  among  the  crews  of  the  United  States  vessels 
in  that  port,  a  concession  of  this  kind  having  been  made  to  France. 
11  Op.,  508,  Speed,  18G6. 

"Engagements  of  extradition  stand  on  particular  stipulations  of 
treaty,  and  are  not  to  be  inferred  from  the  'favored  nation'  clause  in 
treaties. 

"The  8th  article  of  the  convention  for  the  cession  of  Louisiana  pro- 
vided that  after  the  expiration  of  twelve  years  from  the  date  of  that 
treaty  the  ships  of  France  should  be  treated  upon  the  footing  of  the 
most  favored  nations  in  the  ports  of  the  ceded  territory. 

"It  was  contended  by  France  that  this  was  an  absolute  agreement, 
irrespective  of  the  conditions  upon  which  favors  were  granted  to  other 
nations,  and  that,  therefore,  when  a  favor  should  be  granted  to  another 
nation  for  a  consideration  (reciprocal  or  otherwise)  or  upon  a  condition, 
France  was  entitled  to  enjoy  the  same  favor  without  consideration  or 
condition.  This  was  denied  by  the  United  States.  The  claim  was 
abandoned  by  France  in  tlie  treaty  of  1831." 

Mr.  .J.  C.  B.  Davis,  Notes,  &c. 

VI.  SVBSEQVEXT  WAB,  EFFECT  OF. 

§   135. 

As  a  general  rule,  subject  to  exceptions  in  peculiar  cases,  such  obliga- 
tions of  treaties  as  are.  transient  are  considered  as  dissolved  by  a  sub- 
sequent war  between  the  jiarties. 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Rush,  Nov.  6,  1817.     MSS.  Inst.,  Ministers. 

"I  this  day  received  a  letter  from  C.  A.  liodney,  the  Senator  from 
Delaware,  with  a  new  Englisli  authority  against  the  doctrine  that  all 
treaties  are  abrogated  by  war.  It  is  the  oi)inion  of  j\Ir.  Fox,  expressed 
in  Parliament  in  tlie  debate  on  tiie  definitive  treaty  of  peace  of  1783." 

G  Memoirs.!.  Q.  Adams,  54. 

43 


§  135.]  TREATIES.  [chap.  VI. 

The  treaty  of  1783,  so  fur  as  concerns  boundaries  and  fisheries  and 
other  national  privileges  and  rights,  was  not  abrogated  by  the  war  of 
1812. 

Mr.  J.  Q.  Adauis,  The  Fisheries  aud  tbo  Mississippi,  TjG/.     Infra,  ^  150,  300/. 

"It  cannot  be  necessary  to  prove  that  the  treaty  of  1783  is  not,  in  its 
general  provisions,  one  of  those  which,  by  the  common  understanding 
and  usage  of  civilized  nations,  is  or  can  be  considered  as  annulled  by  a 
subsequent  war  between  the  same  ])arties.  To  suppose  that  it  is  would 
iini)ly  the  inconsistency  and  absurdity  of  a  sovereign  and  iiulependent 
stale,  liable  to  forfeit  its  right  of  sovereignty  by  the  act  of  exercising 
it  on  a  declaration  of  war." 

Mr.  Gallatiu  and  Mr.  Rush,  commissioners.,  1817,  quoted  in  2  Lyman's  I)ii)loin. 
U.  S.,  91.     And  see  more  fully  infra,  ^^  150,304. 

"A  state  of  war  abrogates  treaties  previously  existing  between  the 
belligerents,  and  a  treaty  of  peace  puts  an  end  to  all  claims  for  indem- 
nity for  tortuous  acts  committed  under  the  authority  of  one  Govern- 
ment against  the  citizens  or  subjects  of  another,  unless  they  are  pro- 
vided for  in  its  stipulations.  A  treaty  of  peace  which  would  terminate 
the  existing  war  without  providing  for  indemnity  would  enable  Mexico, 
the  acknowledged  debtor,  and  her.self  the  aggressor  in  the  war,  to 
relieve  herself  from  her  just  liabilities.  By  such  a  treaty  our  citizens 
who  hold  just  demands  against  her  would  have  no  remedy  against 
either  Mexico  or  their  own  Government.  Our  duty  to  these  citizens 
must  forever  prevent  such  a  peace,  and  no  treaty  which  does  not  pro- 
vide ami)le  means  of  discharging  these  demands  can  receive  my  sanc- 
tion.'" 

Piesideufc  Polk,  Third  Animal  Message,  1847. 

"  The  general  rule  of  international  law  is  that  war  terminates  all  sub- 
sisting treaties  between  the  belligerent  states.  Great  Britain  has  main- 
tained this  rule  to  its  utmost  extent."  This,  however,  is  subject  to  the 
limitations  above  stated  as  to  treaty  of  1783. 

.Mr.  Buchanan,  Sec.  of  Stale,  to  Mr.  Pakenhani,  July  I'i,  1845.  MSS.  Notes, 
Gr.  Brit.  See  Mr.  Bayard,  See.  of  State,  to  Messrs.  Lehman,  June  23,  IHP'.. 
cited  infra,  ^  LTD. 

War  does  not  by  itself  abrogate  treaties  or  portions  of  treaties  which 
vest  rights  of  property. 

Society,  &c.,  v.  Xcw  Haven,  8  Wheat.,  4()4  ;  Carnoal  v.  Banks,  10  Wheat.,  181. 
See  Schooner  Rapid,  1  Gall.,  303. 

Kent  (Commentaries,  vol.  i,  page  420)  says:  "As  a  general  ruk^,  the 
obligations  of  treaties  are  dissipated  by  hostilities.  But  if  a  treaty  con- 
tain any  stipulations  which  contemjilate  a  .state  of  future  war,  and 
make  provision  for  such  an  exigency,  they  preserve  their  force  and  ob- 
ligation when  the  rupture  takes  place.     All  tho.se  duties  of  which  the 

'11 


CHAP.  VI.]         SUBSEQENT   ANNEXATION,    EFFECT    OF.  [§  136. 

exercise  is  not  necessarily  suspended  by  the  war  subsist  in  their  full 

force." 

Oq  the  question  of  tlie  effect  of  war  on  treaties,  see  farther  Field's  Int.  Code, 
$  905,  citing  Bluntschli,  $  718;  Society,  &c.,  v.  New  Haven,  8  Wheat., 
464;  debate  in  the  House  of  Commons  on  the  declaration  of  Paris  of  1856; 
dispatch  of  Mr.  Marcy  to  Mr.  Mason,  of  Dec.  8, 1856 ;  speeches  of  Sir  George 
Lewis  and  Mr.  Bright  of  March  11  and  17,  1862,  and  of  the  Earl  of  Derby, 
of  Feb.  7,  186-3  ;  Phill.  Int.  Law,  iii,  app.  21 ;  Dana's  Wheaton,  Note  143, 
p.  352. 

Treaties  stipulating  for  a  permanent  arrangement  of  territorial  and 
other  national  rights  are,  at  most,  suspended  during  war,  and  revive  at 
l>eace,  unless  they  are  waived  by  the  parties,  or  new  and  repugnant 
stipulations  are  made. 

Society,  &c.,  v.  New  Haven,  8  Wheat.,  464.     Mr.  J.  Q.  Adams,  The  Fisheries 

and  the  Mississippi,  ^off.,  infra,  §^  150,  300  J". 
As  to  effect  of  war  on  claims,  see  infra,  §§  240,  337. 

In  Sutton  v.  Sutton,  1  E.  «&  M.,  CG3,  the  question  whether  American 
subjects  who  hold  land  in  England  were  to  be  considered  in  respect  to 
such  lands  as  aliens  or  subjects  of  Great  Britain,  or  whether  the  war  of 
1812  had  determined  the  treaty  of  1791,  the  master  of  the  rolls  said: 
"The  privileges  of  natives  being  reciprocally  given,  not  only  to  actual 
possessors  of  land,  but  to  their  heirs  and  assigns,  it  is  a  reasonable  con- 
struction that  it  was  the  intention  of  the  treaty  that  the  operation  of 
the  treaty  should  be  permanent,  and  not  depend  upon  the  continuance 
of  a  state  of  peace." 

"  Stipulations  which  relate  to  boundaries,  to  the  tenure  of  property, 
to  public  debts,  etc.,  and  which  are  permanent  in  their  nature,  are  sus- 
pended by  war,  but  revive  as  soon  as  hostilities  cease.  The  treaties  of 
1783  and  1794  between  the  United  States  and  Great  Britain,  respecting 
confiscation  and  alienage,  were  of  a  permanent  character,  and  the  Su- 
preme Court  held  that  they  were  not  abrogated  by  the  war  of  1512, 
although  their  enforcement  was,  for  the  time  being,  suspended.  Stipu- 
lations relating  to  prizes,  prisoners  of  war,  blockades,  contraband,  etc., 
are  unafiected  by  a  declaration  of  war  between  the  contracting  parties, 
and  can  only  be  annulled  by  new  treaties,  or  in  the  manner  provided 
in  the  instruments  themselves." 

1  Halleck's  Int.  Law  (Baker's  ed.),  242  ;  citing  1  Kent's  Com.,  177  ;  1  Benton's 
Thirty  Years,  487;  Bas  v.  Tingey,  4  Dall.,  37. 

VII.  SUBSEQUENT  ANNEXATION,  EFFECT  OF. 
§  13G. 
The  questions  arising  under  this  head  are  noticed  in  a  prior  section. 

Supra,  ^  5.     See  al.so  infra,  $  240. 

As  to  treaties  of  annexation,  ficcinfra,  ^^  151,  16L 

45 


§  137.]  TREATIES.  [chap.  VI. 

VIII.  SUBSEQUENT  IIEVOLUTION,  EFFECT  OF. 
§  137. 

]\Ir.  llaiiiilloii,  when  llie  (luestiou  t-aiiK'  up  in  tlio  Culiiiiot  as  to  tlic  re- 
c'Oi)ti(ni  of  a  minister  Irom  the  iiVy> !.'/>//(' of  I'la nee,  "earnestly  contended 
that  tlie  reeei)tion  sliouhl  bo  ([ualilied  by  a  formal  (leelaration  that  the 
Cioveinment  iif  the  United  States  reserved  for  its  future  deeision  the 
<luestion  whether  the  treaties  of  1778,  by  which  the  friendly  relations 
between  the  two  countries  were  ori<;iiKilly  established  and  had  hitherto 
been  invariably  conducted  should  be  considered  as  still  in  force  and  bind- 
ing' on  the  United  States.  This  ])roposition  he  endeavored  to  sustain 
by  II  long  and  elaborate  argument  to  show  that  in  consequence  of  the 
change  of  government  in  France,  and  other  considerations  much  dwelt 
on  by  him,  the  United  States  had  a  perfect  right,  if  they  thought 
l)roper  to  do  so,  to  renounce  the  treaty  with  France,  and  that  they  ought 
at  least  to  declare  the  operation  of  these  treaties  suspended  for  the 
present." 

3  liivrs'  Madison,  327.     For  Ilaiiiiltou's  opiiiiou,  Kf»i  4  Ham.  AVorks,  (od.   18y.'j), 
36-2. 

]\Ir.  Jefferson  in  reply  rested  his  argument  on  the  position  "  that  the 
treaties  between  the  United  States  and  France  were  not  treaties  be- 
tween the  United  States  and  Louis  C'ai)et,  but  between  the  two  nations 
of  America  and  France;  and  the  nati)ns  remaining  in  existence  though 
both  of  them  have  since  changed  their  forms  of  government,  the  treat- 
ies are  not  annulled  hy  these  changes." 

3  Rives'  Madison,  329. 

Mr.  Jefferson,  in  writing  on  April  28,  1793,  to  Mr.  Madison,  said, 
"Would  you  suppose  it  possible  that  it  should  have  been  seriously 
proposed  to  declare  our  treaties  with  France  void  on  the  authority 
of  an  ill  understood  scrap  from  Vattel,  and  that  it  should  be  necessary 
to  discuss  it?" 

Mr.  ]\ladison,  on  iMay  8,  rei)lied  as  follows  : 

"  Peace  is,  no  doubt,  to  be  preserved  at  any  price  that  honor  and  good 
faith  will  permit.  But  the  least  departure  from  these  will  not  only  be 
most  likely  to  end  in  the  loss  of  ])eace,  but  is  pregnant  with  every  other 
evil  that  could  happen  to  us.  In  explaining  our  engagements  under 
the  treaty  with  France,  it  would  be  honorable  as  well  as  just,  in  adhere 
to  the  sense  that  tcoulil  at  the  time  have  been  put  v2)on  them.  *  *  *  If 
a  change  of  government  is  an  absolution  from  public  engagements,  why 
not  from  those  of  a  domestic  as  well  as  foreign  nature;  and  what  then 
becomes  of  the  public  debts,  &c.  ?  In  fact,  the  doctrine  would  ])erpetu- 
ate  every  existing  despotism,  by  involving,  in  a  reform  of  the  Govern- 
ment, a  destruction  of  the  social  pact,  an  annihilation  of  property,  and 
a  complete  establishment  of  the  state  of  nature." 

3  Rives'  Madison,  332.     To  same  effect,  sec  Mr.  Jefferson's  opinion,  of  April  28, 
17'J3 ;  7  Jeff.  Works,  G13. 

Mr.  Hamilton  (letter  to  President  Washington,  April  1,  1793,  (4 
Ham.  Works,  18S.1,  79),  went  so  far  as  to  argue  that  the  United  States 
were  bound,  by  the  i>rinciples  of  the  law  of  nations,  to  consider  the 
treaty  of  alliance  of  the  American  colonies  with  France  as  susi)ende(l  in 
consequence  of  the  deposition  and  execution  of  Louis  XVI,  with  a  right 

4G 


CHAP.  Aa.]  SUBSEQUENT  EEVOLUTION,  EFFECT  OF.  [§  137. 

to  renounce  the  treaties  if  such  further  changes  shoukl  afterwards  take 
place  as  could  "  hotia  fide  be  pronounced  to  render  a  continuance  of  the 
connections  which  render  them  disadvantageous  or  dangerous." 

"In  conformity  with  this,  their  idea  of  the  defective  state  of  the 
national  authority,  you  were  desired  from  hence  to  suspend  further  pay- 
ments of  our  debt  to  France  till  new  orders,  with  an  assurance,  however, 
to  the  acting  power  that  the  suspension  should  not  be  continued  a  mo- 
ment longer  than  should  be  necessary  for  us  to  see  there-establishment 
of  some  person,  or  body  of  persons,  authorized  to  receive  i^aymeutand 
give  us  a  good  acquittal  (if  you  should  find  it  necessary  to  give  any  as- 
surance or  explanation  at  all).  In  the  mean  time  we  went  on  paying 
up  the  four  millions  of  livres  which  had  been  destined,  by  the  last  con- 
stituted authorities,  to  the  relief  of  St.  Domingo.  Before  this  was  com- 
pleted we  received  information  that  a  national  assembly  had  met,  with 
full  powers  to  transact  the  affairs  of  the  nation,  and  soon  afterwards  the 
minister  of  France  here  presented  an  ai)plication  for  three  millions  of 
livres  to  be  laid  out  in  provisions  to  be  sent  to  France.  Urged  by  the 
strongest  attachments  to  that  country,  and  thinking  it  even  providential 
that  moneys  lent  to  us  in  distress  could  be  repaid  under  like  circum- 
stances, we  had  no  hesitation  to  comj>ly  with  the  application,  and  ar- 
rangements are  accordingly  taken  for  furnishing  this  sum  at  epochs 
accommodated  to  the  demand  and  our  means  of  paying  it.  We  suppose 
this  will  rather  overpay  the  installments  and  interest  due  on  the  loans 
of  18,  G,  and  10  millions,  to  the  end  of  1792,  and  we  shall  certainly  use 
our  utmost  endeavors  to  make  punctual  payments  of  the  installments 
and  interest  hereafter  becoming  exigible,  and  to  omit  no  opportunity  of 
convincing  that  nation  how  cordially  we  wish  to  serve  them.  "Mutual 
good  offices,  mutual  affection,  and  similar  principles  of  government 
seem  to  destine  the  two  nations  for  the  most  intimate  communion;  and 
I  cannot  too  much  press  it  on  you  to  improve  every  oi^portuuity  which 
may  occur  in  the  changeable  scenes  which  are  passing,  and  to  seize  them 
as  they  occur,  for  placing  our  commerce  with  that  nation  and  its  de- 
pendencies on  the  freest  and  most  encouraging  footing  i3ossible." 

ilr.  Jefferson,   Sec.  of  State,  to  Mr.  Morris,  Mar.  12,   1793.     MSS.  lust.,  Miu- 
isters.     Printed,  though  inaccurately,  iu  3  JefF.  Works,  .521,  522. 

"  We  have  already  referred  to  the  opposing  views  of  the  two  parties  it) 
the  Cabinet  on  the  efl'ect  of  the  change  in  the  French  constitution  on 
existing  treaties.  In  stating  his  opinion  the  Secretary  of  State  said: 
*  I  consider  the  peoi)le  who  constitute  a  society  or  nation  as  the  source 
of  all  authority  in  that  nation,  as  free  to  transact  their  common  concerns 
by  any  agents  they  think  proper,  to  change  these  agents  individually, 
or  the  organization  of  them  in  form  or  function,  whenever  they  ])lease. 
Consequently  the  treaties  l;etween  the  United  States  and  France  were 
not  treaties  l^etween  the  United  States  and  Louis  Capet,  but  between 
the  two  nations  of  America  and  France,  and  the  nations  remaining  in 
existence,  though  both  of  lliem  have  since  changed  their  forms  of  gov- 
ernment, the  tri'aties  are  not  annulled  by  tliese  clianges.'    ^Mr.  rletler- 

47 


§  137.]  TREATIES.  [CIIAP.  VI. 

soil  combated  tUe  passage  from  Vattel  (Liv.  ii,  ch.  IJ,  §  ID'S),  on  which 
the  Secretary  of  the  Treasury  had  based  his  argument  for  the  abroga- 
tion of  the  treaties.  After  admitting  that  an  ally  remains  an  ally  of  the 
state  notwithstanding  the  change  of  government  either  by  a  nation  de- 
posing its  King  or  a  people  of  a  Hepublic  driving  out  its  magistrates, 
and  acknowledging  an  usurper,  the  author  had  added  :  'If,  however,  this 
change  renders  the  alliance  useless,  danfjcrous,  or  disafjrecahle  to  the 
other,  it  may  renounce  it,  for  it  may  say  with  truth  that  it  would  not 
have  allied  itself  with  this  nation  if  it  had  been  under  the  i)resentform 
of  its  government.'  Mr.  Jeflerson  showed  that  Vattel,  in  this  phrase, 
was  not  sustained  by  other  writers  on  the  law  of  nations,  particularly 
drotius,  Pulfendorf  and  Wolf,  nor  with  the  general  tenor  of  his  own 
w  ork,  nor  had  it  been  true  v^ould  it  have  been  api)licable.  '  \Vho,'he  asks, 
'  is  the  American  who  can  say  with  truth  that  he  could  not  have  allied 
himself  with  France  if  she  had  been  a  Itcpublic  or  that  a  lie|)ublic  of  any 
form  would  be  as  disagreeable  as  her  ancient  despotism  ? '  lie  concluded 
that  'the  treaties  are  still  binding,  notwithstanding  the  change  of  gov- 
ernment in  France,  that  no  part  of  them  but  the  clause  of  guarantee 
holds  out  danger  even  at  a  distance,  and  consequently  that  a  liberation 
fro.n  no  other  part  could  be  prcjx  sed  in  any  case  ;  that  if  that  clause  may 
ever  bring  dagger  it  is  neither  extreme  nor  imminent  nor  even  probable  ; 
that  the  authority  lor  renouncing  a  treaty  when  useless  or  disagreeable 
is  either  misur.dcrstood  or  in  opposition  to  itself  to  all  other  writers, 
ami  to  every  moral  feeling  :  that  were  it  not  so  those  treaties  are  in  fact 
neither  useless  nor  disagreeable.'  Tucker's  Life  of  Jeflerson,  vol.  i, 
i  1 4,  4L'l. "     See  infra,  §  ] 48. 

"Mr.  Hamilton,  after  assuming  that  the  guarantee  applied  only  to  a 
defensive  war,  in  order  to  show  that  that  was  not  the  character  of  the 
one  in  which  France  was  engaged,  cites  from  Burlamaqui :  '  We  must  say 
that  generally  the  first  who  takes  up  arms,  whether  justly  or  unjustly, 
commences  an  ofl'ensive  war.'  (Hamilton's  Works,  vol.  iv,  30(5,  382. 
Answers  to  questions  proposed  by  the  President,  April,  1793.)  Even 
the  proposition  is  stated  in  a  qualified  manner,  as  applying  en  general; 
while  from  what  follows  it  is  apparent  that  Burlamaqui  means  to  give 
a  definition  referring  to  the  military  operations  of  a  war,  and  not  af- 
fecting, in  any  sense,  its  political  or  moral  merits.  He  adds:  'Those 
who  regard  the  words  offensive  icar  us  an  odious  term,  always  implying 
something  unjust,  and  who  consider  a  defensive  icar  as  inseparable 
from  justice,  confuse  all  ideas  and  embarrass  a  matter  of  itself  suflB- 
cieutly  clear.'  (Priucipes  du  droit  politique,  part  iv,  ch.  3,  §  5,  p.  8U2.) 
The  correct  view,  and  which  accords  with  our  text,  is  thus  giveu  by 
Kliiber:  'The  vrar  is  defensive  {bellum  drfensivnin)  on  the  side  of  the 
party  which  only  desires  to  defend  its  rights,  in  order  to  obtain  security 
or  re])aration  ;  offensive,  on  the  contrary  {helium  offensivum),  on  the  side 
of  the  party  which  attempts  to  violate  the  rights  of  another.  This  de- 
nomination is  the  same,  whether  one  or  the  other  of  the  belligerents 
has  commenced  the  hostilities;  for  the  war  is  not  the  less  defensive,  if 
the  party  attacks  by  virtue  of  the  right  of  i)revention,  this  right  being- 
one  of  i>ure  defense.'  Droit  des  gens,  part  II,  tit.  2,  sec.  2,  ch.  1,  §  230. 
See  also,  to  the  same  effect,  Halleck's  Int.  Law,  329. 

"  It  would  seem  at  this  day  somewhat  extraordinary  that  the  establish- 
ment of  a  Pepublic  in  France  should  be  deemed  a  sufficient  ground  for 
the  abrogation  of  our  treaties,  especially  as  they  had  for  their  avowed 
object  the  founding  of  rei)ublicau  institutions  here;  while,  as  is  stated 
by  ^Ir.  Wheaton  in  the  text,  'it  would  show  more  than  an  ordinary  de- 

48 


CHAP.  VI.]  SUBSEQUENT  REVOLUTION,  EFFECT  OF.  [§  137. 

feet  ol'  imdcnstaudiug- to  coulbuud  a  war  defensive  iu  its  jjrinciples  with 
a  war  defensive  iu  its  02?erflfyo?is.  Where  attack  is  tbe  best  mode  of 
providing-  for  the  defence  of  a  state,  the  war  is  defensive  in  principle, 
though  the  operations  are  offensive.' 

'•The  causes  which  led  to  the  wars  of  the  French  revolution  are  well 
explained  in  another  work  of  our  author  (History  of  the  Law  of  Na- 
tions, 314-372),  Irom  which  it  will  appear  that  the  object  of  the  coali- 
tions of  the  g'reat  European  powers  against  France  was  a  restoration, 
contrary  to  the  will  of  the  nation,  of  the  old  order  of  things,  and  that 
the  declarations  of  war,  on  her  part,  only  anticipated  the  action  of  her 
enemies.' 

'•A  proclamation  was  issued  by  the  President,  April  22,  1793,  declar- 
ing that,  '  Whereas  it  appears  that  a  state  of  war  exists  between  Aus- 
tria, Prussia,  Sardinia,  Great  Britain,  and  the  United  Netherlands  on 
the  one  part,  and  France  on  the  other,  the  duty  and  interests  of  the 
United  States  require  that  they  should,  with  sincerity  and  good  faith, 
adopt  and  pursue  a  conduct  friendly  and  impartial  towards  the  bellig- 
erent powers.'  (I  Wait's  Am.  St.  Pap.  44.)  As  to  the  question  of  guar- 
antee, 'the  President  decided  that  a  minister  should  be  received  on  tlie 
same  terms  as  formerly,  and  that  the  obligations  of  the  treaties  ought 

to  remain  iu  full  force,  leaving  the  subject  of  guarantee  for  future  con- 
sideration, aided  by  a  better  knowledgeof  the  condition  and  prospects 

of  France.'     Sparks's  Writings  of  Washington,  vol.  i,  p.  486." 

Lawrence's  Wheaton  (ed.  18fi3),  490-492.  For  Mr.  Hamilton's  argument,  see 
more  fully  n'/'o,  §  148.  As  to  this  "guarantee," see  more  fully  infra,  $$  148, 
248. 

]Mr.  Hildreth,  of  all  our  historians  the  most  decided  in  vindicating 
the  views  of  the  old  Federalists,  states  the  position  of  Hamilton  and 
Knox  as  ibllows:  "  They  admitted  the  right  of  France  to  change  her 
government,  but  they  questioned  her  right  after  such  a  change  to  hold 
the  United  States  to  treaties  made  with  a  view  to  a  totally  different 
state  of  things,  and  which,  if  now  carried  out,  might  impose  obligations 
on  the  United  States,  and  expose  them  to  dangers  never  dreamed  of 
when  the  treaties  were  made." 

4Hildretb,  U.  S.,413,  414. 

For  Mr.  Hamilton's  pamphlet  "  Pacificus,"  see  4  Ham.  Works  (ed.  Ib85),  135. 

For  a  notice  of  his  consequent  discussion  with  Mr.  Madison,  see  hifra,  § 

402. 

"  I  have  read  your  notes  of  the  8th  and  of  the  17th  of  March  last,  and 
the  inclosures  of  the  latter,  with  the  care  and  attention  which  I  desire  to 
give  to  everything  written  under  the  instructions  of  your  Government. 

"  P>y  selecting  and  separating  a  particular  fact  in  history  from  the 
other  facts  and  circumstances  with  which  it  is  connected,  and  thus  con- 
sidering it  in  an  isolated  form,  it  is  possible  to  receive  entirely  erroneous 
impressions.  Such  an  impression  seems  to  have  been  formed  by  you 
in  consequence  of  a  partial  consideration  of  the  short  extracts  from  the 
voluminous  correspondence  conducted  between  Holland  and  the  United 
States  after  the  close  of  the  wars  of  Napoleon,  which  are  inclosed  in 
your  note  of  the  17th  of  March. 

"A  brief  review  of  the  Instory  of  the  commercial  relations  between 
the  'avo  countries  will  show  how  erroneous  this  impression  is. 
8.  Mis.  1(A'— VOL.  II 1  49 


§  137.]  TREATIES.  [chap.  VI. 

"The  wise  founders  of  this  Government,  even  before  the  national  in- 
dependence was  achieved,  recognized  the  importance  to  the  new  nation 
of  cultivating  friendship  and  commercial  intercourse  with  the  Nether- 
lands; and  their  advances  in  this  direction  met  with  an  equal  consider- 
ation at  the  hands  of  the  States-General.  The  treaty  of  1783  between 
the  two  powers  is  declared  to  be  made  '  for  establishing  the  most  per- 
fect equality  and  reciprocity,  reserving  withal  to  each  party  the  liberty 
of  admitting  at  its  pleasure  other  nations  to  a  particii)ation  of  the  same 
advantages.' 

"  For  this  purpose  it  was  mutually  agreed  that  each  should  enjoy  foi 
its  subjects  and  citizens  in  the  ports  or  territories  of  the  other  all  rights, 
liberties,  privileges,  immunities,  and  exemptions  in  trade,  navigation, 
and  commerce  which  are  or  should  be  accorded  to  the  most  favored  na- 
tions by  the  other,  and  that  the  duties  or  imposts  imposed  by  each  upon 
the  subjects  or  citizens  of  the  other  were  not  to  exceed  those  which 
were  or  might  be  imposed  upon  the  citizens  or  subjects  of  the  most  fa- 
vored nations.  In  other  words,  in  was  agreed  that  the  rights  of  each 
in  the  territories  of  the  other  in  these  resi)ects  should  be  measured  by 
the  largest  liberties  accorded  to  the  most  favored  nation. 

"  The  power  with  which  the  United  States  contracted  these  relations 
is  described  in  the  treaty  as  '  their  Iligh  Mightinesses  the  States  Gen- 
eral of  the  United  JSTetherlauds.'  In  a  circular  letter  from  their  Iligh 
Mightinesses,  addressed  to  the  States  of  the  United  Provinces,  dated 
the  10th  of  February,  1793,  they  describe  themselves  as  '  a  pacific  Re- 
public,' and  their  principal  magistrate  is  styled  by  them  'the  Stadt- 
holder  of  the  United  I^etherlauds,  of  which  he  is  not  the  sovereign,  but 
an  illustrious  personage,  attached  to  this  Republic  bj' eminent  dignities, 
with  which  he  is  invested  under  the  sovereignty  of  the  states  of  the 
provinces,  the  union  of  which  represents  the  sovereignty  of  the  con- 
federation.' 

"  Hostilities  between  the  United  Provinces  and  France  broke  out  in 
1793,  and  continued  with  varying  fortunes  until  December,  1795,  when 
the  Stadtholder  abandoned  the  country.  Another  form  of  republican 
government  was  established  over  what  was  substantially  the  same  ter- 
ritory, which  was  styled  at  first  the  Republic  of  the  United  Provinces 
and  afterward  the  Batavian  Republic.  The  revolutionary  government 
came  into  complete  possession  of  political  power,  so  far  as  related  to 
foreign  powers,  and  was  recognized  by  many  of  the  other  powers, 
among  whom  were  the  United  States.  It  was  recognized  by  Great 
Britain  in  the  treaty  of  Amiens,  to  which  it  was  a  party. 

'■'■  Subsequently  this  republic  became  a  monarchy,  with  a  Bonaparte 
as  king,  and  this  monarchy  in  a  few  years  disappeared  in  its  turn,  and 
the  whole  territory  of  the  old  seven  United  Provinces  was  incorporated 
into  the  Frencli  Empire,  and  disai>peared  as  a  separate  nationality. 

"On  the  abdication  of  the  Emperor  Xapoleon  the  allies  entered  into 
a  secret  treaty  at  Paris,  in  which  it  was  agreed  that  the  establishment 
50 


CHAP.  VI.]  SUBSEQUENT  EEVOLUTION,  EFFECT  OF.  [§  137. 

of  a  just  balance  of  power  in  Europe  required  tLat  Holland  should  be 
so  constituted  as  to  be  enabled  to  support  lier  independence,  and  tbat 
therefore  the  countries  comprised  between  the  sea,  the  frontiers  of  France 
11  ud  the  IMcuse,  should  be  given  up  forever  to  Holland. 

"  In  tbe  following  year  this  secret  article  was  carried  into  effect  in  the 
congress  at  Vienna.  The  sixty-fifth  article  of  the  general  treaty  of  idl 
the  powers  and  the  first  article  of  the  particular  treaty  respecting  the 
Xetherlands,  alike  provide  that  the  old  United  Provinces  of  the  Nether- 
lands and  the  former  Belgic  provinces,  and  certain  other  countries 
therein  designated,  should  form,  under  the  sovereignty  of  the  house  of 
Orange,  the  Kingdom  of  the  Netherlands.  In  conformity  with  their 
practice  to  recognize  de  facto  Governments,  the  United  States  recognized 
this  political  change  and  entered  into  diplomatic  relations  with  this 
new  Government. 

"  During  these  frequent  political  changes,  and  mainly  during  the  last 
two  years  of  the  reign  of  Louis  Bonaparte,  several  vessels  of  the  United 
States  and  their  cargoes  were  seized  and  condemned  or  confiscated  in 
the  ports  which  had  before  then  formed  the  territorial  domain  of  their 
High  Mightinesses  the  States-General,  When  peace  was  restored,  the 
United  States,  who  had  not  been  parties  to  the  dismemberment  or  to 
the  reorganization  of  continental  Europe,  made  application  to  the  gov- 
ernment of  the  house  of  Orange  for  compensation  for  the  injnries  which 
their  citizens  had  suflered  in  this  way.  The  instructions  to  make  these 
representations  were  dated  the  9th  of  May,  1815,  before  the  din  of  war 
had  ceased. 

"A  long  discussion  ensued,  conducted  in  Holland,  and  extending  from 
1815  to  1820 ;  but  before  considering  it,  in  order  to  preserve  a  chrono- 
logical sequence  of  events,  I  must  refer  to  certain  events  which  took 
place  in  Washington  in  1815  and  181G,  and  which  were  referred  to  in 
my  note  to  you  of  the  19th  of  February  last. 

"The  negotiations  afc  Washington  were  commenced  by  a  note  from 
Mr.  Changuion,  the  then  Dutch  minister,  to  Mr.  Monroe,  the  then  Sec- 
retary of  State,  dated  the  21th  of  February,  1815,  in  which  he  trans- 
mitted '  the  first  overtures  which  he  was  instructed  to  make  in  order  to 
open  negotiations  for  a  treaty  of  amity  and  commerce,'  and  proposed 
'  as  a  base  for  the  new  treaty  to  be  concluded  the  text  of  the  old  treaty 
concluded  in  1782,  with  the  exception  of  the  changes  made  necessary 
by  the  actual  circumstances.' 

"Mr.  Monroe  replied  to  this  on  the  15th  of  April,  1815,  thus:  'The 
treaties  between  the  United  States  and  sonie  of  the  powers  of  Europe 
having  been  annulled  hy  causes  proceeding  from  the  state  of  Europe  for 
Home  time  past,  and  other  treaties  having  expired,  the  United  States 
have  now  to  form  their  system  of  commercial  intercourse  with  every 
l)ower,  as  it  were,  at  the  same  time.  *  *  »  You  have  proposed  to 
form  a  new  treaty.    To  this  the  President  has  readily  agreed.    *     *     * 

51 


§  137.]  TREATIES.  [chap.  VI. 

I  have  assured  you  of  the  willingness  of  the  President  to  make  the 
aneieut  treaty  betweeii  our  countries  the  hasla  of  the  i^roposed  one.'' 

"2^ot  long  after  the  receipt  of  this  letter  Mr.  Changuiou  was  recalled, 
and  after  the  lapse  of  some  months  Mr.  Ten  Gate  replaced  him.  One  of 
his  early  acts  was  to  address  a  note  to  the  Secretary  of  State  (April  4, 
181G),  in  which  he  said  that  he  'conceived  it  i)roper  to  communicate  to 
JMr.  IMonroe  the  intentions  of  the  King,  his  master,  resi)ecting  the  over- 
tures nuule  by  Mr.  Changuion  for  the  purpose  of  consolidating  the 
commercial  relations  between  the  countries  hy  a  rcneical  or  a  modijica- 
Hon  of  the  treaty  of  commerce  of  1782.' 

"  Mr.  Monroe,  on  the  17th  of  August,  1816,  answered,  this  note.  In 
his  answer  he  says :  '  Mr.  Changuion  having  intimated,  by  order  of  his 
(Jovernment,  that  the  treaty  of  1782  was  to  be  considered,  in  conse- 
(luence  of  the  events  which  have  occurred  in  Holland,  as  no  longer  in 
force,  and  having  proposed  also  to  enter  into  a  new  treaty  with  the 
United  States,  this  Government  has  since  contemplated  that  result.  It 
is  i)resumed  that  the  former  treaty  cannot  he  revived  without  being  agaiu 
ratified  and  exchanged  in  the  form  that  is  usual  in  such  cases,  and  in 
the  manner  prescribed  by  our  Gonstitution.' 

"  To  the  note  containing  this  explicit  declaration  Mr.  Ten  Gate  re- 
turned a  long  reply  on  the  lOtb  of  September,  1816.  As  this  reply  un- 
doubtedly exists  in  the  archives  of  the  legation  of  His  Majesty  the  King 
of  the  Netherlands,  in  Washington,  I  content  myself  with  saying  that 
it  does  not  controvert  the  formal  statements  of  Mr.  Monroe.  I  give  the 
extract  which  seems  most  directly  to  bear  upon  the  point  under  discus- 
sion :  '  His  Majesty  u-ill  iindouhtedly  he  disposed  to  enter  into  the  views  of 
the  American  Government  ivith  regard  to  the  consoUdation  hy  some  means 
of  the  commercial  relations  heticeen  the  two  states;  hut  in  expectation  of 
these  happy  results  His  Majesty  may  tale  those  measures,  on  the  other  hand, 
which  appear  best  adapted  to  the  cireumstances  of  the  moment,  and  to  the 
interests  of  the  navigation  and  commerce  of  his  subjects.'' 

"  Thus  the  status  of  the  treaty  of  1782  was  apparently  disposed  of  in 
Washington  in  accordance  with  suggestions  which  the  correspondence 
shows  originated  in  llolland.  This  disposition  would  probably  have 
been  regarded  as  final  had  not  the  Dutcli  Government,  in  the  discus- 
sions which  took  place  soon  after  in  Holhmd,  denied  its  liability  for  the 
claims  already  referred  to,  and  asserted,  as  the  ground  of  tlischarge 
from  responsibility,  that  the  treaty  of  1782  was  not  in  force  in  Holland 
at  the  time  when  the  alleged  injuries  took  place. 

"  Mr.  Monroe  had  by  this  time  become  President,  and  Mr.  John  Quiucy 
Adams  had  succeeded  him  as  Secretary  of  State.  The  latter,  acting 
presumably  under  the  directions  of  the  former,  finding  that  the  conces- 
sions to  the  wishes  of  the  Dutch  Government  which  the  United  States 
was  willing  to  make  in  1810  were  to  be  turned  in  1818  to  the  prejudice 
of  citizens  of  the  United  States,  who  had  suffered  grievous  injuries  in 
Holland,  endeavored  to  reopen  this  question. 
52 


CHAP.  VI.]  SUBSEQUENT  REVOLUTION,  EFFECT  OF.  [§  137. 

"It  was  ill  tbis  eudeavor  that  tbe  instructions  wbicb  you  bare  quoted 
were  written  by  Mr.  Jobn  Quincy  Adams.  Tbey  are  dated  tbe  lOtb  of 
August,  1818,  but  are  erroneous! j' printed  under  tbe  date  of  August  10, 
1824. 

"Tbe  contention  of  tbe  United  States  in  tbis  correspondence  respect- 
ing tbe  treaty  of  1782,  and  respecting  tbe  continuity  of  tbe  political 
organization  with  wbicli  it  was  made,  is  stated  concisely  in  tbe  extract 
wbicb  you  bave  given  from  tbis  dispatcb  of  Mr.  Adams,  and  I  tberefore 
quote  it  again:  'Tbe  rights  and  obligations  of  a  nation  [tbe  italics  are 
Mr.  Adams's]  in  regard  to  other  states  are  independent  of  its  internal 
revolutions  of  government.  *  *  *  On  what  other  ground  is  it,  indeed, 
that  both  the  Governments  of  the  Netherlands  and  of  tbe  United  States 
now  admit  that  they  are  still  reciprocally  bound  by  the  engagements 
and  entitled  to  claim  from  each  other  tbe  benefits  of  the  treaty  between 
tbe  United  States  and  the  United  Provinces  of  1782.  If  tbe  nations 
are  respectively  bound  to  the  stipulations  of  that  treaty  now,  they  were 
equally  bound  to  them  in  1810,  when  tbe  depredations  for  which  indem- 
nity is  now  claimed  were  committed;  and  when  the  present  King  of  tbe 
Ketherlauds  came  to  tbe  sovereignty  of  the  country  he  assumed  with  it 
tbe  obligation  of  repairing  the  injustices  against  other  nations  which 
bad  been  committed  by  his  predecessors,  however  free  from  all  partici- 
pation in  tbem  he  had  been  himself.' 

"It  is  understood  that  the  Dutch  Government  denied  these  proposi- 
tions. 

"Tbe  Baron  de  :N"azel,  in  bis  letter  of  the  14th  of  Jnne,  1819,  to  Mr. 
Everett,  speaking  of  the  union  of  Holland  to  France,  says,  '  The  politi- 
cal existence  of  Holland  was  then  terminated ;  and  again,  it  may  easily 
be  shown  that  Holland  had  ceased  for  a  long  time  to  form  an  independent 
state,  under  a  Government  acting  for  itself  and  responsible  for  its  con- 
duct.' Again,  in  the  same  note,  he  says,  'Tbe  principle  that  the  present 
Government  of  the  Netherlands  is  responsible  for  all  the  acts  of  the  preced- 
ing Governments  from  1795  to  1813,  is  one  ichich  the  King  cannot  admit 
without  restriction.  If  it  might  be  admitted  in  regard  to  a  succession  of 
legitimate  Governments,  it  could  not  be  in  regard  to  a  Government 
established  by  violence,  and  which  was  not  itself  responsible  for  the 
acts  to  which  it  was  forced  by  a  foreign  usurper;  that  the  political 
nullity  of  this  Government  bad  long  been  a  matter  of  public  notoriety.' 
Tbis  was  understood  to  mean  that  there  was  no  recognized  responsibility 
in  the  new  Government  for  any  acts  of  the  Governments  of  Ilolland 
wbicb  existed  from  1795  to  1813,  a  period  of  eighteen  years.  Unless  it 
means  that,  it  has  no  meaning. 

"Again,  tbe  Baron  de  Nazel,  in  a  note  to  iNIr.  Everett,  dated  the  4th 
of  November,  1819,  contends,  in  answer  to  a  citation  made  by  Mr. 
I'^verett  from  Pullendorf,  that  the  incorporation  of  an  indei)endent  state 
into  tbe  territorial  domains  of  another  power  as  a  province  of  that 
|)()\V('r,  works  a  dissolution  of  tbe  o'd  l)o(ly-j)olitic.     Keferring  to  Ibo 

53 


§137.]  TREATIES.  [chap.  VI. 

citatiou  he  says:  '  It  is  wished  to  use  it  in  proof  of  the  position  that  a 
nation  is  not  affected  by  tlio  clianges  of  the  Government,  and  cannot  be 
destroyed  but  by  ihe  dissolution  of  the  body-politic.  Pnffendorf  plainly 
excepts  the  case  of  a  state  that  has  become  the  mere  province  of  another^ 
and  this  case  is  precisely  that  of  TTolhnid.  by  its  i!icor[>oration  ^yith 
France.' 

''Finding- the  Government  of  the  ^Netherlands  linn  in  denying- the 
continuing-  force  of  the  treaty  of  1782,  the  then  President  directed  in- 
structions to  be  sent  to  the  Minister  of  the  United  States  at  The  Hague, 
not  to  press  the  claims  further.  They  were  «lropped  and  most  of  them 
were  subsequently,  in  conformity  with  the  suggestions  of  the  Dutch 
Government,  presented  for  payment  by  France  under  the  treaty  of  1832, 
and  were  allowed  and  paid.  And  thus  the  opinions  of  the  Dutch  Gov- 
ernment respecting  the  treaty  of  1782,  as  oflicially  eonveyed  to  Mr. 
Monroe  by  Mr.  Changuion  in  1815,  were  finally  concurred  in  by  the 
United  States,  and  the  question  disposed  of,  as  it  was  supposed,  forever. 

"The  United  States  found  less  difficulty  in  accepting  the  Dutch  views 
in  regard  to  the  dissolution  of  the  old  body-politic,  which  was  in  exist- 
ence in  1782,  as  they  found  the  new  body-politic  difleriug  from  the 
former  one  in  territory,  in  name,  and  in  form  of  government.  In  place 
of  the  Republic  of  the  United  Provinces,  they  found  the  monarchy  of  the 
Xetherlands;  in  place  of  the  united  territories  of  the  Uigli  IMightinesses, 
they  found  the  domains  nearly  doubled  by  the  addition  of  Brabant  and 
Flanders  and  part  of  Germany;  in  place  of  a  homogeneous  people,  with 
united  historic  associations,  they  found  apolitical  body,  avowedly  created 
by  the  great  powers  of  Europe  out  of  elements  that  did  not  exist  in  a 
national  organization  before  181.5,  for  the  purpose  of  preserving  a  ficti- 
tious balance  of  i)ower.  When  they  found  this  new  body-politic  deny- 
ing (and  persisting  in  the  denial)  that  it  was  the  same  body-politic 
which  had  existed  under  another  form  in  the  Batavian  IJepublic,  and  in 
the  Bonaparte  Kingdom  of  Holland,  the  United  States  accepted  this 
view. 

"In  the  opinion  of  the  President,  this  correspondence  between  Mr. 
Monroe  and  Mr.  Changuion,  taken  in  connection  witli  the  subsequent 
action  of  the  Dutch  Government  in  denying  that  the  treaty  had  any 
valid  operative  force  during  the  long  period  of  eighteen  years,  when  its 
existence  would  have  been  of  advantage  to  the  United  States,  and  also 
in  connection  with  the  acquiescence  of  the  Government  of  the  United 
States  in  that  action,  and  its  submission  of  the  rejected  claims  for  com- 
pensation from  France,  i)laces  beyond  doubt  the  fact  that  the  treaty  of 
1782,  ibr  a  period  of  over  fifty  years,  has  been  mutnalb'  regarded  as  no 
longer  in  force. 

"For  a  long  series  of  years  Holland  was  not  in  a  condition  to  execute 

her  part  of  the  engagements  of  that  treaty.    During  this  long  period 

there  was  none  of  that  reciprocity  of  advantages  which  is  the  essence  of 

treaties  of  amity  and  commerce,  but  all  that  the  treaty  engaged  on  the 

54 


CHAP.  VI.]  SUBSEQUENT  REVOLUTION,  EFFECT  OF.  [§  137. 

part  of  Holland  toward  the  United  States  was  withheld  and  denied  by 
the  Government  which  controlled  her,  which  Government,  nevertheless, 
had  the  attitude  of  separate  and  independent  existence,  until  finally 
her  existence  as  a  state  was  extinguished  by  her  actual  incorporation 
into  France  as  a  part  of  that  Empire. 

"Even  if  there  were  not  this  overwhelming  proof  of  the  intent  of  both 
Governments  I  could  not  concur  with  you  in  the  opinion  that  the  resti- 
tution of  this  treaty  would  be  continued  by  the  doctrine  of  the  right  of 
postlimin3\  That  right  belongs  to  the  state  of  war,  and  its  applica- 
tion is  confined  to  tlie  parties  belligerent,  or,  at  the  utmost,  to  them  and 
their  allies,  and  can  accrue  only  within  their  territory,  or  as  between 
them.  It  cannot  be  enforced  in  neutral  states,  because  the  neutral  is 
bound  to  consider  each  belligerent  as  equally  just  in  his  position. 

"  In  the  wars  from  which  Holland  suffered  so  severely  during  the 
latter  part  of  the  hist  and  the  beginning  of  the  present  centuries,  the 
United  States  were  neutral.  It  would  bo  an  extension  of  the  doctrine 
which  you  involve  beyond  any  authority  which  I  can  find  to  apply  it  to  a 
power  which  had  maintained  the  position  which  the  United  States  ob- 
served toward  Holland  and  France  during  the  long  contest.  I  fail  to  find 
it  anywhere  stated  that  on  the  conclusion  of  a  peace  by  which  a  conquered 
country  has  regained  her  independence,  the  ancient  treaties  of  that 
country  with  other  powers  are  thereby  necessarily  revived.  Indeed,  the 
course  pursued  by  Holland  and  Denmark  in  the  treaty  of  July  10,1817, 
whereby  the  parties  agreed  that  the  stipulations  of  the  treaty  of  com- 
merce between  them  of  1701  should  remain  in  force  until  there  should 
be  an  arrangement  for  its  renewal,  would  seem  to  show  that  in  their 
joint  judgment  such  was  not  the  public  law  in  1817. 

"  Happily,  however,  the  unmistakable  accord  of  the  United  States 
and  Holland,  respecting  the  treaty  of  1782,  renders  further  discussion 
of  this  point  unnecessary. 

•'  Upon  the  pacification  of  Western  Europe  in  1815,  and  the  creation  of 
the  Kingdom  of  the  Netherlands,  the  United  States,  finding  their  com- 
mercial treaties  with  the  states  in  Europe  which  had  been  at  war  at  an 
end,  provided  by  legislation  to  meet  the  necessities  of  the  case,  and  for 
the  establishment  of  reciprocal  freedom  of  commercial  intercourse  with 
those  states.  By  an  act  passed  on  the  3d  day  of  March,  1815,  they 
abolished  all  discriminating  duties  on  vessels  and  on  goods,  the  produce 
or  manufacture  of  any  foreign  nation,  imported  into  the  United  States 
in  the  vessels  of  those  foreign  nations  which  might  abolish  discrimi- 
nating or  countervailing  duties  to  the  disadvantage  of  the  United 
States. 

"This  act  subsequently  became  the  subject  of  some  correspondence 
between  the  two  Governments.  A  negotiation  was  carried  on  at  The 
Uague,  in  which  both  parties  endeavored  to  agree  upon  a  new  treaty, 
with  the  old  treaty  of  1782  as  the  basis ;  but  it  failed  from  causes  whicli 
it  is  not  necessary  to  dwell  upon.     It  is  worthy  of  note  in  this  connec- 

55 


§  137. J  TREATIES.  [cnAr.  YI 

tioM  that  after  the  olijections  to  the.  Diitcli  coiitoiitioii  concerning  tlie 
treaty  of  1782  bad  been  ^vitbdra^vn  in  1821),  Mr.  Adams,  referring  to 
tbese  unsuccessful  negotiations,  instructed  Mr.  Everett  (August  9, 1823) 
that  *  tbe  act  of  1S15  was  an  experimental  (jlVcr,  made  to  all  niaritinu^ 
nations.  It  was  in  tbe  course  of  tlic  same  year  a(',('ei)ted  by  (Ireat  Brit- 
ain, coiilinncd  in  the  form  of  a  convention.  A  similar  effort  was  made 
with  the  Xetherlands  in  1817,  but  without  success;  hut  the  principle  of 
equtdization  tcan  cstahlislicd  by  corresponding  lcgiiiJntivc  actx.'' 

"It  is  evident  from  this  that  the  officers  of  the  United  States  had 
reason  to  think  that  the  commercial  relations  of  the  two  countries  at 
that  time  were  regulated  not  by  treaty,  but  by  reciprocal  legislation, 
and  that  the  United  States  desired  to  have  the  basis  of  that  legislation 
the  principle  of  equalization.  Indeed,  as  early  as  the  5th  of  ]\Iarch, 
1818,  ]\Ir.  Adams  informed  Mr.  Ten  Catc  that  'notwithstanding  the 
termination  of  the  conferences  between  the  plenipotentiaries  of  the  two 
Governments  without  succeeding  in  the  object  of  their  meeting  by  the 
conclusion  of  a  new  treaty  of  commerce  between  the  two  nations,  the 
desire  of  the  Government  of  the  United  States  is  not  the  less  earnest 
that  the  commercial  intercourse  between  them  may  be  regulated  by 
principles  of  perfect  reciprocity,  and  tending  to  promote  the  most  cor- 
dial harmony  aiul  friendship  between  them.' 

"  Keciprocity  and  equalization  to  be  achieved  by  legislation,  were  at 
that  time  the  American  solution  of  perfect  commercial  relations  between 
the  two  nations. 

"  I  am  not  aware  that  any  Dutch  ofiicial  took  exceptions  to  this  plan, 
or  asserted  that  the  treaty  of  1782  was  in  force  with  the  '  most  favored 
nations'  plan  as  its  basis.  Even  jMr.  Chevalier  Baugeman  Huygens,  in 
his  note  of  November  11,  1820,  quoted  by  you,  asserts  that  the  provis- 
ions of  the  treaty  were  '  suspended  '  (Baron  de  Nazel  claimed  that  the 
suspension  lasted  eighteen  years),  and  the  whole  tenor  of  Mr.  Huygens's 
note  shows  that  lie  felt  that  there  was  no  mutual  act  of  the  two  Gov- 
ernments by  which  it  could  be  shown  that  the  suspension  was  set  aside 
aiul  the  treat}'  revived.  ELse  why  does  he  speak  in  his  note  of  '  the 
existence  or  the  renewal  of  the  treatij  o/1782,'  and  why  does  he  say  that 
'  it  would  certainly  be  more  advantageous  to  the  two  nations  to  leave 
that  precarious  legislation  and  he  bound  hg  liberal  and  reciprocal  conven- 
tions ? ' 

"  In  1839  the  i)arties  left  '  precarious  legislation  '  and  became  '  bound 
by  a  liberal  and  reciprocal  convention.'  In  this  instrument,  which  is 
declared  to  be  made  because  the  parties  are  anxious  to  regulate  the 
commerce  and  navigation  carried  on  between  the  two  countries  in  their 
respective  vessels,  it  is  i)rovided  that  goods  and  merchandise  of  what- 
ever origin,  imported  into  or  exported  from  the  ports  of  one  country 
from  or  to  the  ports  of  tlie  other  (those  of  the  Netherlands  being  con- 
fined to  Europe),  shall  pay  no  higlier  or  other  duties  tlian  those  levied 
on  like  goods  and  merchandise  imported  or  exported  in  national  vessels; 
56 


CHAP.  VI.]  SUBSEQUENT  REVOLUTION,  EFFECT  OF.  [s^  137. 

that  bouDties,  drawbacks,  or  otlier  favors  in  eitber  state  ou  goods  ex- 
l)orted  or  imported  Id  national  vessels  shall  be  also  granted  on  goods 
directly  exported  or  imported  in  vessels  of  the  other  country  to  and 
from  the  ports  of  the  two  countries ;  and  that  tonnage  and  harbor  dues, 
and  light  house,  salvage,  pilotage,  quarantine,  or  i)ort  charges  shall  be 
imposed  in  each  country  on  the  vessels  of  the  other  only  as  imposed  in 
like  cases  on  national  vessels. 

''xVgain,  in  1852,  the  two  powers  '  being  desirous  of  placing  the  com- 
)nerce  of  the  tico  countries  on  a  footing  of  greater  mutual  equality,^  agreed 
ro  extend  the  provisions  of  the  treaty  of  1839,  so  that  its  provisions 
should  include  also  goods  and  merchandise  of  whatever  origin,  imported 
or  exported  from  or  to  anj^  other  country  than  the  Uuited  States  or 
Xetherlands  respectively,  with  a  similar  extension  as  to  bounties,  draw- 
backs, «S:c. ;  so  that  now,  by  treaty  as  well  as  by  legislation,  the  com- 
merce and  trade  of  each  of  the  two  countries  are  placed  upon  that  footing 
of  equality  with  those  of  the  other,  and  upon  that  basis  of  complete  reci 
procity,  which  both  parties  have  ever  professed  to  desire,  and  which  the 
Coited  States  sought  to  attain  by  reciprocal  and  equalizing  legislation. 
It  is  worthy  of  remark  that  the  negotiators  of  the  treaty  of  1782  declare 
that  it  is  concluded  with  the  object  of '  establishing  the  most  perfect  equality 
and  reciprocity  for  the  basis  of  their  agreement,'  while  the  negotiators 
of  the  treaty  of  1852  declare  that  the  two  powers  were  then  desirous  of 
placing  the  two  countries  on  a  footing  of  greater  mutual  equality.  If  the 
treaty  of  1782,  creatiug  '  the  most  iierfect  equality,'  was  in  force  in  1852, 
why  should  the  parties  have  thought  it  necessary  to  provide  for  an 
equality  greater  than  the  most  i)erfect  one  already  existing  ?  To  ask 
such  a  question  is  to  suggest  the  answer. 

''  It  was  because  the  treaty  of  1782  had  long  ceased  to  be  operative,  and 
because  the  mutual  commercial  relations  of  the  two  j)Owers  which  each 
desired  to  increase,  and  to  remove  from  the  iuflueu3e  of  fluctuating 
legislation,  demanded  further  i)rotectiou,  that  the  parties  concluded  the 
successive  treaties  of  1839  and  1852.  And  in  these  instruments,  influ- 
enced by  the  liberal  views  which  now  prevail,  the  parties  agreed  to 
measure  the  equality  and  the  reciprocity  which  they  desired  to  give 
each  to  the  other,  not  by  the  favors  which  they  might  grant  to  any  other, 
even  the  most  favored  nation,  but  by  the  impositions  to  which  the  na- 
tional vessels  of  each  were  subjected  in  its  own  jiorts.  It  seems  to  me 
that  an  agreement  which  goes  beyond  this  just  measure,  and  which  aims 
to  give  to  the  vessel  under  the  foreign  flag  a  preference  over  a  vessel 
which  carries  the  national  ensign,  is  founded  in  injustice,  and  when  en- 
forced can  only  tend  to  decrease  the  friendliness  and  cordiality  which 
commercial  treaties  should  aim  to  foster.  Happily  no  such  engagement 
exists  between  the  United  States  and  the  Netherlands. 

"The  laws  of  the  United  States  impose  a  tonnage  tax  of  thirty  cents 
per  ton  on  th<*  first  entiy  or  clearance,  according  to  priority  of  a  ves.scl 
from  or  to  tJii;   West    India    Islands,  the   l>iiiish    itrovinccs   of  Noi'th 


§  137a.]  TREATIES.  [chap.  VI. 

America,  Mexico,  or  any  port  or  place  south  ol  Mexico,  down  to  and  in- 
cluding Aspinwall  and  Panama,  or  any  port  or  place  in  the  Sandwich 
Islands,  or  the  Society  Islands,  provided  tliat  no  tonnage  tax  has  been 
paid  on  such  vessels  within  one  year.  They  also  impose  a  tax  of  the 
same  amount  ou  vessels  engaged  in  commerce  between  the  United 
States  and  foreign  i)orts  or  places  other  than  those  specified  above,  to  be 
levied  on  the  first  entry,  and  thereafter  on  each  entry  made  after  the 
expiration  of  a  year  IVom  any  i)revious  payment  of  the  dues. 

"All  vessels  of  the  commercial  marine  of  the  United  States  are  sub- 
ject to  and  pay  this  tax.  The  commercial  marine  of  Holland,  being 
placed  by  treaty  on  the  same  footing  with  the  commercial  marine  of  the 
United  States,  is  subject  to  no  other  or  higher  duties  than  these,  but  is 
j'.ubject  to  these  tonnage  dues  so  long  as  they  shall  continue  to  be  im- 
posed by  law  upon  the  vessels  of  the  United  States. 

"  If,  as  I  flatter  myself  has  been  shown,  the  treaty  of  1782  is  no  longer 
binding  ou  the  parties,  their  commercial  relations  are  now  regulated  by 
the  treaties  of  1S39  and  1852  only.  Neither  of  these  instruments,  how- 
ever, promises  to  place  the  vessels  of  Holland  in  the  ports  of  the  United 
States  on  the  same  footing  as  those  of  the  most  favored  nation.  When 
they  were  concluded,  Holland  probably  supposed  that  she  Jiad  a  sufii- 
cient  security  against  any  discrimination  in  the  stipulation  that  her  ves- 
sels were  to  have  the  same  treatment  in  our  ports  as  our  own.  At  that 
lime  no  tonnage  duties  were  levied  in  the  ports  of  .the  United  States. 
Events  have  since  occurred,  however,  which,  in  the  judgment  of  Con- 
gress, made  such  a  change  necessary." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  De  Westenberg,  Apr.  9,  1873.  MSS.  Notes,  Netb- 
erlaud-s.  For.  Rel.,  1873.  Ou  this  topic  see  Mr.  J.  C.B.Davis,  in  "Notes 
to  Treaties,"  tit.,  Netberlands,  1782.     Sec,  also,  infra,^  155. 

A  successful  revolution  does  not  relieve  the  country  revolutionized 

from  liability  on  its  prior  engagements  to  foreign  states. 

Mr.  FisL,  Sec.  of  State,  to  Mr.  Bassett,  Feb.  21,  1877,  MSS   Inst.,  Ilayti. 

As  to  effect  of  revolutions  on  claims,  see  ii'Jt'a,  ^'^  23(),  240;  App.,  vol.  iii,  ^  5. 

IX.     AliUOCr Alloy  BY  CONSENT,  BY  IIEFUDIATION,  OR   BY  CIIANOE  OF 

CIRCUMSTANCES. 

§  137a. 

A  treaty  may  be  modified  or  abrogated  under  the  following  circum- 
stances : 

(1)  "When  the  parties  mutually  consent. 

(2)  When  continuance  is  conditioned  upon  terms  which  no  longer 
exist. 

(3)  "When  either  party  refuses  to  perform  a  material  stipulation. 

(4)  "When  all  the  material  stipulations  have  been  ])erformed. 

(5)  When  a  j^arty  having  the  option  elects  to  withdraw. 

(G)  When  performance  becomes  physically  or  morally  impossible. 

58 


CTIAr.  VI.]         REPUDIATION:    CHANGED    CIRCUMSTANCES.        [§  137^. 

(7)  When  a  state  of  things  whicli  was  tlie  basis  of  the  treaty,  and  one 
of  its  tacit  conditions,  no  longer  exists. 

In  most  of  the  old  treaties  were  inserted  tbe  '■^  clausula  rebus  sic  stanti- 
hus,^^  by  which  tbe  treaty  might  be  construed  as  abrogated  when  ma- 
terial circumstances  on  which  it  rested  changed.  To  work  this  etfect 
it  is  not  necessary  that  the  facts  alleged  to  have  changed  should  be 
material  conditions.  It  is  enough  if  they  were  strong  inducements  to 
the  party  asking  abrogation. 

The  maxim,  "•  Conventio  onmis  intelligitur  rchiis  sic  stantihus,^^  is  held 
to  apply  to  all  cases  in  which  the  reason  for  a  treaty  has  failed,  or  there 
has  been  such  a  change  of  circumstances  as  to  make  its  performance 
impracticable  except  at  an  unreasonable  sacrifice. 

Wbart.  Com.  Am.  Law,  §  161.    See  infra,  ^  l.?8. 

"The  first  point  to  be  determined  in  this  inquiry,  is,  as  you  properly 
suggest,  whether  the  treaty  of  March  20,  1833  [with  Siam],  is  super- 
seded by  the  subsequent  treaty  of  May  29,  185G.  Asa  general  rule,  as 
you  are  well  aware,  unless  a  particular  contract  undertakes  to  abrogate 
all  former  contracts  between  the  parties,  it  only  vacates  such  portions 
of  former  contracts  as  are  inconsistent  with  its  terms.  The  same  rule 
is  applied  to  statutes  covering  more  or  less  the  ground  of  former  legis- 
lation. If  this  rule  be  applied  in  the  i)reseut  case,  then  the  clause  in 
the  treaty  of  1833  precluding  the  importation  or  sale  in  Siam  (except 
to  the  King)  of  '  munitions  of  war'  ]S  still  in  force." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  Jan.  7, 1880.     MSS.  Inst.,  Gr.  Brit. 

"The  Duke  (of  Wellingtou,  then  j  rime  minister)  has  left  a  memo- 
randum on  the  cabinet  table  showing  clearly  from  treaties  that  this  (the 
overthrow  of  the  Bourbons  in  1830)  is  not  a  case  in  which  we  were  bound 
to  interfere.  We  engaged  to  support  a  constitutional  monarch  against 
revolutionary  movements,  but  the  monarch  having  violated  the  consti- 
tution has  broken  the  condition." 

2  Lord  Ellenborcpiiyh's  Diary,  &c.,  341,  entry  of  Aug.  '23,  18;'0.     But  see  supra, 
^  137. 

The  intention  to  abrogate  a  treaty  must  plainly  appear. 

Chin  A.  On,  in  re;  18  Fed.  Rep.,  506. 

As  to  abrogation  hy  snhseriuent  legislation,  see  infra,  ^^  13^^,  '248. 

The  question  of  the  abrogation  of  the  treaties  with  France,  of  1778,  is 
considered  infra,  §§  148,  248.  At  i)resent  the  following  notes  may  be 
sufficient  to  exhibit  the  points  at  is.sue: 

The  act  "annulling"  the  treaties  is  as  follows: 

"  Whereas  the  treaties  concluded  between  the  United  States  and 
France  have  been  re])eatedly  violated  on  the  part  of  the  French  Govern- 
ment, and  the  just  claims  of  the  United  States  for  reparation  of  the 
injuries  so  committed  have  been  refused,  and  their  attempts  to  nego- 
tiate an  amicable  adjustment  of  all  complaints  between  the  two  nations 
have  been  repelled  with  indignity ;  and  whereas,  under  authority  of 
the  French  Government,  there  is  yet  pursued  against  the  United  States 
a  system  of  predatory  violence,  infracting  the  said  treaties  and  hostile 
to  the  liglits  of  a  irce  and  independent  nation  : 

"  Beit  enacted  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assemltJrd^  Tliat  the  United  States  are  of 

59 


§  137^7.]  TKEATli:^^  [chap.  VI. 

ri^lit  IVt'cd  ;iml  c'XoiK'iatt'il  tioni  the  stipulations  of  tlic  treaty  ami  of 
the  eotisiilait'onventioii  heretofore  eonehuUMl  between  theUnitedStates 
and  I'ranee,  and  that  the  same  shall  not  heneel'orth  be  regarded  as 
U'jially  oblijiatory  on  the  (JovernmiMit  or  eitizens  of  the  United  States. 
"  Approve  d  Jnly  7,  1798." 

1  U.  S.  Stat.  L..  f)?'^. 

This  annulling;-  act,  however,  whatever  mi.uht  be  its  municipal  eilect, 
by  itself  could  jiot  internationally  release  the  United  States  from  its 
ol)li<iations  toFrance.     i^iipra,  §  0  (last  clause). 

In  Chirac  v.  Chirac,  2  Wheat.,  272,  :Marshall,  C.  J.,  said  that  there 
was  in  July,  1791),  "  no  treaty  in  existence  between  tlic  two  nations." 
This,  however,  applies  merely  to  the  mnnicii)al  operations  of  the  treaty. 

The  act  of  Conjiress  was  sustained  by  the  American  envoys,  in  a 
h'tter  to  thv  French  envoys,  dated  at  Paris,  July  2.3,  1800,  on  the  <iround 
of  i>i  ior  violation  by  l-^rance.  {Infra,  §  218.)  "  It  was  remarked  that  a 
treaty,  being  a  mutual  conii)act,  a  ]ialpable  violation  of  it  by  one  party 
did,  by  the  law  of  nature  and  of  nations,  leave  it  optional  with  the  other 
to  renounce  and  declare  the  same  to  be  no  longer  obligatory;  and  tlmt, 
of  necessity,  there  being  no  common  tribuiml  to  which  they  could  aj)- 
]»eal,  the  remaining  party  must  decide  whether  there  had  been  such 
violation  on  the  other  ]>art  as  to  justify  its  renunciation.  For  a  wrong 
decision  it  would  doubtless  be  responsible  to  the  injured  party,  and 
might  give  cause  for  war;  but  even  in  such  case  its  act  of  public  re- 
nunciation, being  an  act  within  its  comi)etencej  would  not  be  a  void, 
but  a  valid  act,  and  other  nations  whose  rights  might  thereby  be  bene- 
ficially affected  would  so  regard  it. 

"Tliat  it  had  become  impossible  for  the  UniteJ  States  to  save  their 
commerce  from  the  depredations  of  French  cruisers  but  by  resorting  to 
defensive  measures ;  and  that  as,  by  their  Constitution,  existing  treaties 
were  the  supreme  law'  of  the  land,  and  the  judicial  department,  who 
must  be  governed  by  them,  is  not  under  the  control  of  the  executive  or 
legislative,  it  was  also  impossible  for  them  to  legalize  defensive  meas- 
ures, incompatible  with  the  French  treaties  while  they  continued  to 
exist.     Then  it  was  that  they  were  formally  renounced.     *     *     * 

"To  the  still  further  suggestion  that  the  laws  of  nations  admitted  of 
a  dissolution  of  treaties  only  by  mutual  consent  or  war,  it  was  remarked 
by  the  undersigned  that  their  conviction  was  clearly  otherwise,  and 
that  Vattel  in  i)articular,  the  best  ap])roved  of  modern  writers,  not  oidy 
held  that  a  treaty  violated  by  one  party  might,  for  that  reason,  be  re- 
nounced by  the  other,  but  that  where  there  were  two  treaties  between 
the  same  i)arties,  one  might  be  rendered  void  in  that  way,  and  the  other 
remain  in  force;  whereas  when  war  dissolves,  it  «lissolves  all  treaties 
between  the  parties  at  the  time." 

Messrs.  Ellsworth,  Diivio,  and  Murray  to  tlio  French  negotiators,  July  23,  IrOO, 
Sen.  Ex.  Doc.  102,  19th  Cong.,  1st  sess ,  pp.  G12,Gl:5.     Sec  infra,  I  148. 

"At  the  close  of  the  wars  of  iS^apoleon,  the  treaty  of  1795  with  Spain 
alone,  of  all  of  the  commercial  treaties,  survived.  President  i\Iadison 
contemj)lated  using  the  oppi'rtunity  to  mould  all  the  treaties  of  this 
nature  into  a  general  system.  ^Ir.  x\Ionroe,  in  an  early  stage  of  negotia- 
tions with  Holland,  for  this  pnr]»ose,  informed  the  Dutch  minister  at 
Washington  that  '  the  treaties  between  the  United  States  and  some  of 
the  ]>owers  ofEuroi)e  having-  been  annulled  by  causes  i^roceeding  from 
the  state  of  I'uropo  for  some  time  ]>ast,  and  other  treaties  having  ex- 

GO 


CHAP    VI.]        KEPUDIATIOX:  CHANGED  CIRCUMSTANCES.  [§  137rt. 

pired,  the  Uuitecl  States  have  now  to  form  their  system  of  commercial 
intercourse  with  every  power,  as  it  were,  at  the  same  time.'  But  the 
only  general  commercial  treaties  which  Monroe  succeeded  iu  conclud- 
ing, either  as  Secretary  of  State  under  President  Madison,  or  as  Presi- 
dent with  John  Quincy  Adams  as  Secretary'  of  State,  were  the  treaty 
of  1815  with  Great  Britain,  the  limited  arrangements  made  with  Prance 
iu  1822,  and  the  treaty  with  Colombia  in  1824." 

Mr.  J.  C.  B.  Davis,  Notes,  &c.    See  infra,  $  161. 

The  treaty  of  Paris,  assented  to  by  the  congress  of  Vienna  (1814-'15), 
consolidated  Holland  and  Belgium.  Iu  1830  the  five  powers,  who  were 
parties  to  the  treaty  of  Vienna,  determined  (December  20,  1830)  that 
"in  forming,  by  the  treaties  iu  question,  the  union  of  Belgium  and  Hol- 
land, the  powers  who  signed  those  treaties  had  in  view  the  establish- 
ment of  a  just  equilibrium  iu  Europe,  and  the  assurance  of  the  main- 
tenance of  general  peace.  Unhappily  the  events  of  the  last  few  months 
have  shown  that  the  full  and  comi)lete  amalgamation  which  the  powers 
desired  to  produce  in  those  countries  has  not  been  obtained ;  that  it 
would  henceforth  be  impossible  to  effectuate  that  purpose ;  that  thus 
the  very  object  of  the  union  of  Belgium  and  Holland  was  destroyed, 
and  that  henceforth  it  becomes  indispensable  to  recur  to  other  arrange- 
ments iu  order  to  accomplish  the  intention,  the  means  of  executing 
which  this  uniou  ought  to  serve." 

Abcly's  Kent  (1878),  52;  citing  Brit,  and  For.  St.  Pap.,  1830-'31,  vol.  19,  p.  749. 

"History  is  full  of  broken  guarantees  and  alliances,  and  of  disputes 
about  the  casus  feeder  is,  which  have  not  arisen  from  bad  faith,  nor  from 
the  common  uncertainties  of  language,  but  are  peculiar  to  this  class  of 
compacts,  and  against  which  no  precision  of  phrase  can  ever  com- 
pletely joiu.  Multiply  engagements  as  you  will ;  clinch  them  firmly  as 
you  may ;  but  never  count  on  them  to  make  a  nation  draw  sword  iu  a 
(puirrel  it  deems  unjust,  and  for  objects  in  which  it  is  to  have  no  share. 
The  successive  coalitions  against  the  first  Xapoleon  showed  how  hard 
a  task  it  is  to  induce  several  powers  to  act  steadily  together,  even  iu 
the  presence  of  a  general,  instant,  and  formidable  danger." 

Bernard  on  Diplomacy,  85. 

"  In  1814  and  1815  a  set  of  treaties  were  made  by  a  general  congress 
of  the  states  of  Europe,  which  affected  to  regulate  the  external,  and 
some  of  the  internal,  concerns  of  the  European  nations,  for  a  time  alto- 
gether unlimited.  These  treaties,  having  been  concluded  at  the  termi- 
nation of  a  long  war,  which  had  ended  in  the  signal  discomfiture  of 
one  side,  were  imposed  by  some  of  the  contracting  parties,  and  reluc- 
tantly submitted  to  by  others.  Their  terms  were  regulated  by  the  inter- 
ests aud  relative  strength  at  the  time  of  the  victors  and  vanquished, 
and  were  observed  as  long  as  those  interests  and  that  relative  strength 
remained  the  same.  But  as  fast  as  any  alteration  took  place  in  these 
elements,  the  powers,  one  after  anotlier,  without  asking  leave,  threw 
ofl",  and  were  allowed  Avith  imi)uuity  to  throw  oil",  such  of  the  obliga- 
tions of  the  treaties  as  were  distasteful  to  them,  and  not  sufiiciently 
important  to  the  others  to  be  worth  a  fight.  The  general  opinion  sus- 
tained some  of  tho.se  violations  as  being  perfectly  right;  and  even  those 
which  were  disapproved  were  not  regarded  as  justifying  a  resort  to 
war.     l^urojiv  did  not  interpose  when  liussia  annihilat<'d   Poland,  when 


§  137a.]  TREATIES.  [chap.  VI. 

Prussia,  Austria,  and  liussia  oxtiiiguisliod  the  ]U'i)ublic  of  Cracow,  or 
when  a  second  Bonajtarte  mounted  the  throne  of  France.    *     ♦     * 

'•  Did  any  iinj)artial  person  bhinie  Prussia  or  Austria  because,  in  1813, 
they  viohited  the  treaties  whicii  bound  them  to  the  first  Napoleon, 
and  not  only  did  not  li.uht  in  his  raidis,  as  their  en^aj^euients  recjuired, 
but  brouiihi  their  whole  military  force  into  the  lield  a;;;ainst  him,  and 
pursui'd  him  to  his  destruction  ".  Ou^hl  tliey,  instead  of  canceling;  the 
treaties,  to  have  opened  a  ne;;oliation  with  Napoleon,  and  entreated 
him  to  pliant  them  a  voluntary  release  from  tlieir  obligations,  and  if 
he  did  not  com])ly  with  their  re(pu>st  to  be  allowed  todesert  him,  oujiht 
they  to  have  failhlully  fought  in  his  defense?  Yet  it  was  as  tiueof 
those  treaties  as  it  is  of  the  treaty  of  1850,  tiiat,  disadvantageous  and 
dishonorable  as  they  might  be,  they  had  been  submitti'd  to  as  the  i)ur- 
chase money  of  i)eace,  when  the  i)rolongation  of  war  would  luive  been 
most  disastrous;  for  had  the  terms  been  refused.  Napoleon  could  with 
ease  have  conquered  the  whole  of  Prussia  and,  at  least,  the  German 
dominions  of  Austria,  whicli  is  considerably  more,  I  presume,  than  Eng- 
land and  France  could  have  done  to  Ivussia  after  the  fall  of  Sebasto- 
pol.     *     *     ♦ 

'•  Wliat  means,  then,  are  there  of  reconciling,  in  the  greatest  practi- 
cable degree,  the  inviolability  of  treaties  and  the  sanctity  of  national 
faith,  with  tlie  undoubted  fact  that  treaties  are  not  always  fit  to  be 
kei)t,  while  yet  those  who  have  imposed  them  upon  others  weaker  than 
theuiselves  are  not  likely,  if  they  retain  confidence  in  their  own  strengtli, 
to  grant  a  release  from  them?  To  effect  this  reconcilement,  so  far  as  it 
is  capable  of  being  effected,  nations  should  be  willing  to  abide  by  two 
rules.  They  should  abstain  from  imposing  conditions  which,  ou"  any 
just  ami  reasonable  view  of  human  affairs,  cannot  be  expected  to  be 
kept.  And  they  should  conclude  their  treaties  as  commercial  treaties 
are  usually  concluded,  only  for  a.  term  of  j'ears.     *     *     * 

"  If  these  ])rinciples  are  sound  it  remains  to  be  considered  how  they 
are  to  be  applied  to  past  treaties,  which,  though  containing  stipulations 
which,  to  be  legitimate,  must  be  temporaiy,  have  been  concluded  with- 
out such  limitation,  and  are  afterwards  violated,  or,  as  by  llussia  at 
present,  repudiated,  on  the  assujui)tion  of  a  right  superior  to  the  faith 
of  engagements. 

"It  is  the  misfortune  of  such  stipulations,  even  if  as  temporary  ar- 
rangements they  might  have  been  justifiable,  that  if  concluded  for  perm- 
anency they  are  seldom  to  be  got  rid  of  without  some  lawless  act  on 
the  part  of  the  nation  bound  by  them.  If  a  lawless  act,  then,  has 
been  committed  in  the  present  instance,  it  does  not  entitle  those  who 
imposed  the  conditions  to  consider  the  lawlessness  only,  and  to  dismiss 
the  more  important  cousideratiim,  whether,  even  if  it  was  wrong  to 
throw  off  the  obligation,  it  would  not  be  still  more  wrong  to  persist  iu 
enforcing  it.  If,  though  not  fit  to  be  perpetual,  it  has  been  imposed  iu 
perpetuity,  the  question  when  it  becomes  right  to  throw  it  off'  is  but  a 
question  of  time.  No  time  having  been  fixed,  Russia  fixed  her  own  time, 
and  naturally  chose  the  most  convenient.  She  had  no  reason  to  believe 
that  the  release  she  sought  would  be  voluntarily  granted  on  any  condi- 
tions which  she  would  accept,  and  she  chose  an  opi)ortunity  which,  if 
not  seized,  might  have  been  long  before  it  occurred  again,  when  the 
other  contracting  parties  were  in  a  more  than  usually  disadvantageous 
position  for  going  to  war." 

J.  S.  Mill  on  "Treaty  Obligations,"  8  Fortniglitly  Review,  N.S.  (1870),  715/. 
62  ' 


CHAP.  YI.]  ABROGATION.  [§  137a. 

The  following  is  a  memorandum  of  abrogated  treaties  of  the  United  States 

{not  including  claims  conventions). 
Algiers : 

The  treaties  with  Algiers  are  regarded  as  terminated  by  the  Freuch  conquest  of 
1831. 
Belgium  : 

1545,  November  10.  Commerce  and  uavigatiou.  Terminated  August  20,  IbGS,  iu 
accordance  witli  Article  XIX,  by  notice  given  by  Belgium  in  note  of  August 
20,  1657. 
1853,  July  17.  Commerce  and  navigation.  Terminated  July  1,  1875,  by  notice 
given  by  the  United  States  July  1,  1874,  in  accordance  with  the  joint  resolu- 
tion of  Congress  approved  June  17,  1874. 
18G3,  December  5.     Consular.    Terminated  January  1,  1880,   iu  accordance  with 

Article  XYI,  by  notice  given  by  Belgium  January  1,  1879. 
18GS,  December  20.     Trade-marks.     Terminated  July  1,  1875,  with  the  treaty  of 

July  17,  1858,  of  which  it  formed  part. 
1874,  March  19.     Extradition.    Terminated  December  18,  1882,  in  accordance  with 
Article  XI  of  convention  of  June  13.  1882. 
Brazil  (see  infra,  $  143). 

1S23,  December  12.     Couimerce  and  navigation.    Terminated  December  12,  1841, 
by  notice  given  by  Brazil  Marcli  2G,  1840. 
Central  America  : 

1825,  December  5.    Commerce  and  navigation.    Terminated  as  respects  commerce 
and  navigation  by  its  own  limitation  August  2,  1838,  and  for  the  rest  by  the 
dissolution  of  the  federation  in  1839. 
CiHLi : 

1832,  May  18.  Commerce  and  navigation.  Terminated  January  20,  lc50,  by 
notice  given  by  Chili  January  19,  1849,  in  accordance  with  Article  XXXI. 

1833,  September  1.  Additional  to,  and  explanatory  of,  the  treaty  of  1832.  Ter- 
minated January  20,  1850,  with  the  treaty  of  May  18,  1832,  of  wliich  it  formed 
part. 

CiiiN'A  (see  infra,  $  144) : 

1844,  July  3.    Amity  and  commerce.     The  treaties  of  June  18  and  November  8 
1858,  take  its  place. 
Colombia  (see  infra  $  145) : 

1824,  October  3.  Commerce  and  navigation.  Terminated  October  3,  183G,  by  its 
own  limitation. 

France  (see  infra,  ^^  143 _^) : 

1778,  February  6.     Amity   and  commerce.     Terminated  by   act  of  Congress  ap- 
proved July  7,  1798.     (But  see  discussion  supra  in  this  section,  and  infra, 
U  148,248.) 
1778,  February  G.     Alliance.     Terminated  as  above.     {Ibid.) 
1778,  February  6.     (Act  sejiarate  and  secret.)    Terraiuated  as  above.     (Ibid.) 
1788,  November  14.     Consular.     Terminated  as  above.      {Ibid.) 
1800,  September  30.     Commerce  and  navigation.     Terminated  July  31,  1809,   by 
its  own  limitation. 
OitEAT  Britain  (sec  infra,  ^^  150^) : 

1782,  November  .30,  Peace;  1783,  September  3,  Commerce  and  navigation  ;  1794, 
November  19,  Commerce  and  navigation  ;  1797,  May  4,  Explanatory  ;  1798, 
March  15,  Explanatory;  1802,  Januarys,  Claims.  Held  by  Great  Britair 
to  have  been  terminated  by  war  of  1812.  (But  as  to  this,  see  sujyra,  $  135.) 
1827,  September  29.  Boundary.  Treaty  of  1842  substituted. 
1854,  Juno  5.  I{eti])rocily.  Terminated  March  17,  18G(),  by  notice  given  by  the 
United  States  March  17,  18G5,  in  accordance  with  the  Joint  resolution  of  Cou- 
Crcss  approved  January  18,  1865. 

03 


§  137rt.]  TREATIES.  [chap.  VI. 

Great  liiaxAiN— Cuutiuuctl. 

16&2,  Ajnil  7.  Sliivo  tiailc.  lli;;litorKt'iircliauil  tlcteiilion  lLn.rciugivcu  exlciitkil 
to  vicinity  of  cprtaiu  islands,  February  17,  18(>3.  Provisions  as  to  uiixotl 
tribunals  abolished  August  10,  1870.  Instructions  for  the  ships  omployod  to 
prevent  the  African  slave  trade  modilied  by  convention  of  Juno  I?,  1870, 

1871,  May  8.  Alabama  claims.  Articles  18  to  25  inclusive,  and  article  32,  rela- 
ting to  the  fisheries,  and  article  30,  respecting  the  transportation  of  mer- 
chandise terminated  July  1,  188.'),  by  notice  given  by  the  United  Slates  July 

2,  1683,  in  acconlanco  with  the  joint  resolution  of  Congress  approved  March 

3,  1883. 

CiL'ATKMALA  : 

1841),  M;uch  3.     Tfruiiualcd  November  I,  1874. 
llANOVlCn: 

All  the  treaties  with  Hanover  are  regarded  as  liaving  terminated  in  con.se(iueuco 
of  its  incorporation  into  the  Kingdom  of  Prussia  in  1800. 

Itaky  (see  infra,  ^  152): 

1808,  February  8.     Consular.     Terminated  September   17,  1878,  by  notice  givm 
by  Italy,  September  15,  1880. 
Jai'AN  (see  infra),  ^  153)  : 

1854,  March  31.     Such  of  the  provisions  of  this  treaty  as  conlliet  willi  those  of 

the  treaty  of  July  29,  18.")8,  are  revoked  by  the  twelfth  article  of  tli(!  latter 
treaty. 
1857,  June  17.     Terminated  by  Article  XII  of  the  treaty  of  July  20,  185^^. 
•  1804,  January  28.     Commerce.     Terminated  July  1,  1860,  by  convention  of  July 
25,  1866. 
Mkxico  (see  infra,  §  154): 

1828,  January  12.     Never  carried  into  operation. 

1831,  April  5.     Suspended  by  war  between  the  parties  in  1840-1847;  revived  May 
30,  1848)  with  some  exception,  by  article  17  of  the  treaty  of  February  2, 
1848;  article  .33  abrogated  by  article  2  of  the  treaty  of  December  30,  1853; 
and  the  entire  treaty  finally  terminated  November  30,  1881,  by  notice  given 
by  Mexico  November  30,  1880. 
1808,  July  10.      Terminated  February  11,  1882,   by  notice  given  by  Mexico  Feb- 
ruary 10,  1881. 
Morocco: 

1787,  .launary.     Terminated  January,  1837,  by  its  own  limitation. 
Nassau  : 

1840,  May  27,     Nassua  was  absorbed  into  the  Kingdom  of  Prussia  in  1810,  and  .ill 
treaties  with  it  are  regarded  as  terminated. 
Netueulaxds  (see  infra,  $  155) : 

1782.     (See  Mr.  Fish  to  Mr.  De  Westeuberg,  April  9,  1873,  quoted  siqmi,  ^  137.) 

1855,  January  22.  Consular.  Terminated  August  20,  1879  ;  thcconvcntion  ofMiiy 
23,  1878,  took  its  place. 

Peru: 

1830.     (See  infra,  $  1.57.) 

1851,  July  20.     Terminated  December  9,  1803,  by  notice  given  by  Peru  December 

9, 18G2. 
1870,  September  0.     Commerce  and  navigation.     Terminated  March  31.  1880,  by 

notice  given  by  Peru  March  31,  1885. 
1870,  September  12.     Extradition.     Terminated  as  above. 

C4  / 


CHAP.  YI.]  AUTHOEITY    IN    THE    UNITED    STATES.  [§  138. 

Prussia  (see  hifra,  ^  149) : 

1785,  September  10.     Amitj-  and  commerce.     Terminated  October,  1796,  by  its  own 

limitation. 
1799,  July  11.     Amity  and  commerce.     Terminated  June  22,  1810,  by  its  own  limi- 
tation. 
Salvador : 

1850,  January  2.     Commerce  and  navigation.     Abrogated  by  article  38  of  treaty 
of  December  C,  1870. 
Sardinia  (see  infra,  §  160) : 

1838,  November  26.     Commerce  and  navigation  and  separate  article.     Treaty  of 
1871  with  Italy  takes  its  place. 
Spain  (see  infra,  ^'^  IGl  Jf.) : 

1802,  August  11.     Claims.     Annulled  by  article  10  of  treaty  of  February  22,  1819. 
Sweden  and  Norway: 

1816,  September  4.     Terminated  by  its  own  terms. 
Tripoli  (see  infra,  ^  164) : 

1796,  November  4.     Treaty  of  June  4,  180»,  takes  its  place. 
Turkey : 

(See  infra,  ^  165.) 
Two  Sicilies  (see  infra,  $  152): 

1845,  December  1.     Commerce  and  navigation.     Treaty  of  1855  takes  its  place. 
1855,  January  13.     Neutral  rights.     Terminated  by  absorption  of  the  Two  Sicilies 

by  Italy. 
1855,  October  1.     Commerce  and  navigation  and  extradition.     Terminated  by 
absorption  of  the  Two  Sicilies  by  Italy. 
Venezuela  (see  infra,  $  165a) : 

1836,  January  20.     Commerce  and  navigation.     Terminated  January  3,  1851,  by 
notice  given  by  Venezuela  in  note  of  November  5,  1849,  received  January  3, 
1850. 
1860,  August  27.     Commerce  and  navigation  and  extradition.     Terminated  Octo- 
ber 22,  1870,  by  notice  given  by  Venezuela  October  22,  1869. 

X,  TREATIES,  WEEN  CONSTITUTIONAL,  ARE  TEE  SUPREME  LAW  OF 
TEE  LAND,  BUT  MAY  BE  MUNICIPALLY  MODIFIED  BY  SUBSEQUENT 
LEGISLATION 

§  138. 

*•  Treaties,  as  I  understand  the  Constitution,  are  made  supreme  over 
the  constitutions  and  laws  of  the  particuhxr  States,  and,  like  a  subse- 
(juent  hiw  of  the  United  States,  over  preexisting  laws  of  the  United 
States ;  provided,  however,  that  the  treaty  be  within  the  prerogativ'e 
of  making  treaties,  which,  no  doubt,  has  certain  limits. 

"  That  the  contracting  powers  can  annul  the  treaty  cannot,  I  presume, 
be  questioned,  the  same  authority,  precisely,  being  exercised  in  annulling 
as  in  making  a  treaty. 

"  That  a  breach  on  one  side  (even  of  a  single  article,  each  being  con- 
sidered as  a  c<)n<lition  of  every  other  article)  discharges  the  other,  is  as 
lilth*.  questionable,  but  with  this  reservation,  that  the  other  side  is  at 
lil)frty  to  tike  advantage  or  not  of  the  breacli,  as  dissolving  lh(^  treaty. 
Hf'iicc  I  infei-  that  tluj  treaty  with  (Jreat  Jiritain,  which  has  not  been 
iiiiiiiiih'd  l)y  muMial  consent,  mnst  be  regarded  as  in  full  force  by  all  on 
>vhom  its  execution  in  the  United  States  depends,  until  it  shall  be  de- 

S.  Mis.  102  — VOL.  II 5  05 


5  138.]  TREATIES.  [chap.  VI. 

clared  by  the  party,  to  whom  a  rifrbt  lias  accrued  by  the  breach  of  the 
other  party  to  declare,  that  advantafre  is  to  be  taken  of  the  breach,  and 
the  treaty  is  annulled  accordingly.  In  case  it-vshould  be  advisable  to 
take  advantajie  of  the  adverse  breach,  a  question  may  perhaps  bo 
started,  whether  the  ]H)wer  vested  by  the  Constitution  with  respect  to 
treaties  in  the  President  and  Senate  makes  them  the  competent  Judges, 
or  whether,  as  the  treaty  is  a  law,  the  whole  legislature  are  to  judge  of 
its  annulment,  or  whether,  in  case  the  President  and  Senate  be  com- 
l)etent  in  onlinary  treaties,  the  legislative  authority  be  miuisite  to  an- 
nul a  treaty  of  jx-acc,  as  being,  equivalent  to  a  declaration  of  war,  to 
which  that  authority  alone,  by  our  Constitution,  is  competent." 

Mr.  Madisou  to  Mr.  Edmund  Pendleton,  Jan.  2,  171U.     1  Madison's  Work's,  5'24. 
See  Mr.  Jefferson's  views,  supra,  $  131. 

"  I  delivered  to  the  President  my  report  of  instructions  for  Carmichael 
and  Short  on  the  subject  of  navigation,  boundary,  and  commerce,  and 
desired  him  to  submit  it  to  Hamilton.  Hamilton  made  several  just 
criticisms  on  different  parts  of  it.  But  where  1  asserted  that  the  United 
States  had  no  right  to  alienate  an  inch  of  the  territory  of  any  State,  he 
attacked  and  denied  the  doctrine.  See  my  report,  his  note,  and  my 
answer.' 

Extract  from  Jefferson's  Ana,  March  11,  171l"2.     2  Randall's  Life  of  Jefferson, 
55.     For  views  of  Hamilton  and  King,  see  5  Lodge's  Hamilton,  134,  310. 

"  In  everj-  constitutional  Government  the  ])ower  of  raising  and  grant- 
ing money  is  vested  in  the  legislature ;  that  of  making  treaties  in  the 
executive.  In  every  such  Government  the  question  may  arise  whether 
the  treaty-making  ])ower  is,  in  every  instance,  paramount,  and  imposes 
on  the  legislature  the  duty  of  granting  without  examination  the  money 
necessary  to  pay  the  subsidies  or  indemnities  promised  by  the  treaty ; 
or,  whether  the  power  of  granting  money,  vested  by  the  constitution  in 
that  body,  does  not  necessarily  imjdy  the  ric/ht  of  examining  and  decid- 
ing each  case  according  to  its  original  merits. 

"The  present  Administration  of  the  United  States  is  of  opinion  that 
here  the  treaty-making  power  is  paramount.  It  may  thence  have  been 
too  hastily  inferred  that  that  i)ower  was  in  Fiance  also  acknowledged 
to  be  supreme  and  to  i)ledge  absolutely  the  legislature  and  the  nation. 
There  may  be  in  the  Coustitution  of  the  United  States  some  clauses 
not  to  be  found  in  that  of  France,  which  sustain  the  construction 
adopted  by  our  Executive  Magistrate.  But  even  in  the  United  States 
the  question  has  been  considered  as  doubtful. 

"  Mr.  Madison's  resolution  of  the  year  179G,  which  asserts  the  abstract 
right  of  the  House  of  Ilepresentatives,  was  adopted  by  a  majority  of  the 
House,  and  remains,  unrepealed,  of  record  on  its  journal.  And  it  can- 
not be  denied  that,  during  the  sixteen  years  of  the  administration  of 
Presidents  Jefferson  and  Madison,  that  was  the  avowed  construction  of 
the  Constitution  by  the  Government  of  the  United  States.  It  is  not 
necessary  here  to  inquire  whether  that  construction  is  correct.  I  may 
not  be  an  impartial  judge  of  that  question,  and  only  mean  to  show  that 
even  here,  it  is  one  on  which  opinions  have  been  divided." 

Mr.  Gallatin  to  Mr.  Everett,  January,  1835.   2  Gallatin's  Writings,  479. 

"The  non-compliance  with  the  conditions  of  atreaty,  whether  ])roceed- 
ing  from  the  executive  or  legislative  branch  of  Government,  does  not 
alone,  and  when  neither  arising  from  a  hostile  spirit  nor  accompanied 

GG 


CHAP.  VI.]  AUTHOKITY   IN    THE    UNITED    STATES.  [§  138. 

with  insult,  afford  such  extreme  ground  of  complaint  as  to  impose  on 
the  aggrieved  nation  the  necessity  of  considering  that  act  as  an  indig- 
nity, and  of  resorting  to  war  as  the  only  alternative  for  sustaining  her 
character.  The  refusal  of  the  British  House  of  Commons  to  carry  into 
effect  the  commercial  treaty  of  Utrecht  with  France  has  already  been 
alluded  to.     I  beg  leave  to  remind  you  of  another  instance : 

''  By  the  treaty  of  179J:,  between  America  and  England,  the  United 
States  bound  themselves  to  pay  to  British  subjects  the  amount  of  the 
British  debts  which  had  been  lost  by  reason  of  laws  passed  by  several 
States  in  contravention  of  the  provisions  of  the  treaty  of  1783.  And  it 
was  expressly  provided  by  that  of  1794  that  the  amount  thus  payable 
by  the  United  States  should  be  definitely  settled  by  a  joint  commission 
consisting  of  four  members,  and,  in  case  of  disagreement  between  these, 
by  a  fifth  commissioner,  chosen  by  the  four  primitive  members  of  the 
board." 

Mr.  Gallatiu  to  Mr.  Everett,  Jauuary,  1835.  2  Gallatin's  Writiugs,  497.  See  6 
Jett.  Works,  557,  for  a  memorandum  of  Mr.  Jefferson,  dated  Mar.  13,  1816, 
as  to  the  power  of  a  treaty  to  modify  a  jire-existing  law. 

"  By  the  Federal  Constitution  the  several  States  retained  all  the  attrib- 
utes of  sovereignty  which  were  not  granted  to  the  General  Government. 
The  right  of  regulating  successions  in  relation  to  the  subject  in  question 
is  not  among  those  conceded  rights ;  consequently  it  was  reserved  to, 
and  is  still  vested  in,  the  several  States.  But  by  the  same  Constitution 
it  is  provided  that  treaties  made  under  the  authority  of  the  General  Gov- 
ernment shall  be  the  supreme  law  of  the  land,  anything  in  the  consti- 
tution or  laws  of  a  State  to  the  contrary  notwithstanding. 

"  This  very  brief  exposition  shows  at  once  the  cause  of  the  want  of 
comity  in  the  laws  of  the  United  States  to  which  you  advert,  and  indi- 
cates the  remedy  which  a  treaty  between  the  two  nations  would  effect- 
ually apply." 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  de  Sacken,  June  13, 1831.  MSS.  Notes,  For. 
Leg. 

"  The  Government  of  the  United  States  presumes  that  whenever  a 
treaty  has  been  duly  concluded  and  ratified  by  tbe  acknowledged  au- 
thorities competent  for  that  purpose,  an  obligation  is  thereby  imposed 
upon  each  and  every  department  of  the  Government  to  carry  it  into 
complete  effect,  according  to  its  terms,  and  that  on  the  performance 
of  this  obligation  consists  the  due  observance  of  good  faith  among 
nations." 

Mr.  Livingston,  Sec.  of  State,  to  Mr.  Serurier,  June  3,  1833.  MSS.  Notes. 
For.  Leg.  See  also  Mr.  McLane,  Sec.  of  State,  to  Mr.  Serurier,  Sept.  5, 
1833;  ibid.     But  see  supra  $  131a. 

"  From  the  beginning  and  throughout  the  whole  existence  of  the  Fed- 
eral Government,  it  [the  treaty-making  power]  has  been  exercised  con- 
stantly on  commerce,  navigation,  and  other  delegated  powers,  to  the 
almost  entire  exclusion  of  the  reserved,  which,  from  their  nature,  rarely 
ever  come  in  question  between  us  and  other  nations.    The  treaty-making 

67 


§  138.]  TREATIES.  [ClIAr.  VI. 

l)ower  has.  indocd,  boon  vofiartU'd  to  be  so  coinproheiisivc  as  to  embrace, 
^vith  lew  exceptions,  all  (jiu'stioiis  that  can  possibly  arise  between  us 
and  other  nations,  and  which  can  only  be  a<ljusted  by  their  mutual  con- 
sent, whether  the  subject-matter  be  comprised  anum<jj  the  delegated  or 
the  reserved  powers.  So  far.  indeed,  is  it  IVom  being  trni^,  as  the  report 
suj^poses,  that  the  mere  fact  of  a  power  being  delegated  to  Congress  ex. 
eludes  it  from  being  the  snbject  of  treaty  stipulations,  that  even  its  ex- 
elnsive  delegation,  if  we  may  judge  from  the  habitual  i>r.ictice  of  the 
Government,  does  not — of  which  the  power  of  api)ropriating  money  af- 
fords a  striking  example.  It  is  expressly  and  exclusively  delegated  to 
Congress,  and  yet  scarcely  a  treaty  has  beeti  made  of  any  importance 
which  does  not  stipulate  for  the  payment  of  money.  No  objection  has 
ever  been  made  on  this  account.  The  only  question  ever  raised  in  ref- 
erence to  it  is,  whether  Congress  has  not  unlimited  discretion  to  grant 
or  withhold  the  appropriation." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Wlieatou,  June  ^,8,  1844.     MSS.  lust.,  Prussia. 

"  The  Constitution  is  to  prevail  over  a  treaty  where  the  provisions  of 
the  one  come  in  contiict  with  the  other.  It  would  be  difficult  to  find  a 
reputable  lawyer  in  this  country  who  would  not  yield  a  ready  assent  to 
this  proposition." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  Sept.  11,  1854.     MSS.  Inst.,  France. 

"  In  reply,  the  undersigned  hastens  to  inform  Mr.  Aspuriia  that  it  is 
believed  not  to  be  competent  to  the  treaty-making-  i)Ower  of  the  United 
States  to  enter  into  such  an  engagement  as  that  contained  in  the  twenty- 
fifth  article  of  the  convention  concluded  at  Caracas  on  the  20th  day  of 
September  by  the  j)leuipotentiaries  of  Venezuela  and  the  United  States, 
viz  : 

"  'Whenever  one  of  the  contracting  parties  shall  be  engaged  in  war 
with  another  state,  no  citizen  of  the  other  contracting  party  shall  accept 
a  commission  or  letter  of  marque  for  the  jmrpose  of  assisting  or  co-op- 
erating hostilely  with  the  said  enemy  against  the  said  party  so  at  war, 
under  the  pain  of  being  considered  as  a  pirate.' 

"  The  Constitution  of  the  United  States  provides  that  Congress  shall 
'define  and  punish  i>iracies  and  felonies  committed  on  the  high  seas.' 
Although  several  conventions  have  been  made  by  this  Government  with 
foreign  Governments,  some  of  which  still  continue  in  force,  containing, 
in  substance,  the  stipulation  just  quoted,  they  were  evidently  contracted 
by  an  oversight  of  one  of  the  provisions  of  tlAj  Constitution — the  su- 
preme law  of  this  country.  The  President,  entertaining  this  opinion, 
cannot  consent  to  transmit  the  convention  negotiated  by  Mr.  Eames, 
which  in  all  other  respects  meets  with  his  approval,  to  the  Senate  for 
ratification  without  presenting  to  that  body  his  objections  to  the  article 
aforementioned." 

Mr.  Marcy,  Sec.  of  Stale,  to  Mr.  Asimnia,  Nov.  15,  1854.    MSS.  Notes,  Venez. 
68 


OHAP.  Vl]  authority    IN    THE    UNITED    STATES.  [§  138. 

"  It  is  not,  as  you  will  perceive  by  exaiuininft-  Mr.  Drouyu  ile  L'Huys's 
dispatch  to  tbe  Count  de Sartiges,  the  application  of  the  'principle'  to 
the  particular  case  of  M.  Dillon  which  is  to  be  disavowed,  but  the  broad 
and  general  i^roposition  that  the  Constitution  is  paramount  in  authority 
to  any  treaty  or  convention  made  by  this  Government.  This  principle, 
the  President  directs  me  t(^say,  he  cannot  disavow,  nor  would  it  be 
candid  in  him  to  withhold  an  expression  of  his  belief  that  if  a  case  should 
arise  presenting  a  direct  conflict  between  the  Constitution  of  the  United 
States  and  a  treaty  made  by  authority  thereof,  and  be  brought  before 
our  highest  tribunal  for  adjudication,  the  court  would  act  upon  the  prin- 
ciple that  the  Constitution  was  the  paramount  law." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  Jan.  18,  1855.     MSS.  Inst.,  France. 

"  A  mere  declaration  by  a  congress  of  the  representatives  of  a  few 
powers  would  hardly  be  a  proper  instrument  to  send  to  the  Senate  for 
ratification.  If  it  came  from  each  Government  in  an  authentic  form  the 
difficulty  might  perhaps  in  that  way  be  got  over.  Then  it  would  assume 
the  character  of  a  contract,  and  a  treaty  is  nothing  more.  I  do  not  see 
that  the  provisions  of  the  declaration  of  the  Paris  conference,  amended 
as  this  Government  has  proposed,  could  embarrass  the  Government  of 
the  Emperor  of  the  French  in  the  way  you  apprehend.  The  amend- 
ment does  not  require  France  to  go  aside  from  the  declaration  ;  it  goes 
a  little  beyond  that  declaration,  but  precisely  in  the  same  direction. 
The  proposed  treaty  would  contain  all  of  the  declaration.  The  engage- 
ment of  the  Imperial  Government,  with  the  other  signatory  powers,  is 
not  to  negotiate  on  maritime  rights  without  embracing  the  principles  of 
the  declaration,  and  that  engagement  would  not  in  the  slightest  degree 
be  departed  from  by  the  proposed  treaty." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  Dec.  8,  1856.     MSS.  Inst.,  France. 

"  The  estates  of  decedents  are  administered  upon  and  settled  in  the 
United  States  under  the  laws  of  the  State  of  which  the  decedent  was  a 
resident  at  the  time  of  his  death,  and  on  this  account,  in  the  absence  of 
any  treaty  regulations  on  the  subject,  interference  in  the  disposition  of 
such  measures  as  may  be  prescribed  by  the  laws  of  the  particular  State 
in  such  cases  is  not  within  the  province  of  the  Federal  authorities." 

Mr.  Fish,  Sec.  of  State,  to  Aristarchi  Bey,  May  19,  1874.    MSS.  Notes,  Turkey. 

"  Provisions  of  treaties  and  of  statutes  are  made  by  the  Constitution 
alike  the  su])reme  law  of  the  land,  and  such  law  remains  in  full  force 
and  equally  binding  until  repealed,  abrogated,  or  set  aside  by  compe- 
tent authority. 

"  But  it  is  difijcult  to  deduce  from  the  Constitution  or  elsewhere  any 
standard  by  which  to  measure  the  relative  weight  to  be  accorded  to 
law,  when  made  by  the  negotiation  of  a  treaty,  over  that  made  by  enact- 
ing a  statute. 

C9 


§  138.]  TREATIES.  [chap.  VI. 

"  It  has  been  liild  (iiiite  frequently  that  a  subsequent  treaty  super- 
sedes an  act  of(\)n;;iess  with  which  it  is  in  conflict,  as  in  Waici'.  Dylton, 
3  ball.,  190;  Dean  ex  (Jem.  Fisher  r.  Hanulcn,  1  Paine  C.  C,  55;  and 
the  converse  that  an  act  of  Congress  subsequent  to  a  treaty  must  be  en- 
forced as  the  supreme  law  of  the  land,  although  in  violation  of  the  pro- 
visions of  the  treaty,  has  been  held  quite  •ciinently.  (Taylor  v.  Mor- 
ton, 2  Curtis  C.  C,  451;  Kopes  v.  Clinch,  8  Blatch,  304;  The  Clinton 
Bridge,  1  Woolworth,  150;  The  Cherokee  Tobacco  Cases,  11  Wall., 
GIG.) 

"  You  consider  the  decision  in  the  Cherokee  tobacco  cases,  however, 
ohifer,  because  the  treaty  was  an  Indian  treaty.  Still  the  general  ques- 
tion was  distinctly  passed  on  by  the  court,  and  no  such  question  was 
there  raised,  and  it  has  been  decided  on  legal  authority  that  a  treaty 
with  Indian  tribes  has  the  same  dignity  and  ellect  as  a  treaty  with  a 
foreign  power,  being  a  treaty  within  the  meaning  of  the  Constitution, 
and  the  supreme  law  of  the  land.  (Turner  v.  The  American  Baptist 
Missionary  Union,  5  McL.  C.  C,  314.) 

"Mr.  Crittenden,  while  Attorney-General,  held,  in  reference  to  the 
Florida  claims,  that  '  an  act  of  Congress  is  as  much  a  supreme  law  of 
the  land  as  a  treaty.  They  are  placed  on  the  same  footing,  and  no 
preference  or  superiority  is  given  to  the  one  over  the  other.'  (5  Op. 
Att.  Gen.,  345.) 

"In  the  general  discussion  of  the  question  in  the  early  cases,  such  as 
the  United  States  v.  The  Schooner  Peggy,  1  Cranch,  103,  and  Fosters. 
Neilson,  2  Pet.,  253,  a  treaty  is  considered  as  equivalent,  not  superior,  to 
an  act  of  Congress. 

"  Judge  Story,  too,  declares  that  treaties  are  subject  to  legislative 
enactment;  and  Judge  Cooley,  in  his  edition,  and  in  a  note  to  Judge 
Story's  text,  states  the  rule  very  broadly  that  an  act  of  Congress  may 
supersede  a  prior  treaty. 

"  In  a  strict  legal  sense  the  diflficulty  lies  in  considering  law,  when 
enacted,  regardless  of  the  method  of  enactment,  as  other  than  binding 
in  the  highest  degree. 

"  Of  course,  in  speaking  of  the  effect  of  subsequent  legislation  upon 
the  provisions  of  a  prior  treaty,  I  refer  only  to  the  effect  in  the  country 
where  the  legislation  is  enacted,  and  upon  the  officers  and  people  of 
that  country. 

"The  foreign  nation  whose  rights  are  invaded  thereby  has  no  less 
cause  of  complaint  and  no  less  right  to  decline  to  recognize  any  in- 
ternal legislation  which  presumes  to  limit  or  curtail  rights  accorded  by 
treaty." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cnshiiig,  July  20,  1876.*   MSS.  lust.,  Spain.     See 
sxipra,  $  9. 

"  The  result  of  several  late  decisions  in  this  country,  as  well  as  two 
at  least  of  the  opinions  of  the  Attorneys-General,  seem  to  lead  to  the 
70 


CHAP.  VI.]  AUTHORITY    IN    THE    UNITED    STATES.  [§  138. 

conclusion  that  an  act  of  Congress  of  lat^r  date  than  a  treaty, 
although  in  violation  of  its  terms,  must  be  obeyed  as  municipal  law 
within  the  country,  although  in  no  manner  binding  on  the  foreign 
state,  and  although  it  in  no  manner  affords  a  sufiQcient  excuse  for  a 
violation  of  treaty  provisions." 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Cusliing,  Feb.  13,  1877  ;  adopting  same  tosame, 
July  20,  1H76.     MSS.  Inst.,  Spain.     See  supra,  $  9.  ' 

"  This  is  not  a  case  where  domestic  laws  override  the  provisions  of  a 
treaty,  but  where  a  treaty  depends  on  domestic  laws  to  give  it  effect; 
and  those  domestic  laws,  and  the  judgment  interpreting  them,  must  of 
necessity  be  the  sole  guidance  of  the  Executive  in  its  execution.  Al- 
though a  foreign  treaty  is,  by  the  Constitution  of  the  United  States,  in 
like  manner  with  acts  of  Congress  and  the  Constitution,  the  supreme 
law  of  the  land,  yet  generally  it  does  not  execute  itself,  but  requires 
some  legislation,  especially  under  a  republican  form  of  government,  to 
carry  it  into  eflect.  Chief-Justice  Marshall  clearly  explains  the  rule 
as  to  the  relation  between  treaty  and  statutory  law,  when  he  says  that 
a  treaty  'is  to  be  regarded' in  courts  of  justice  as  equivalent  to  an  act  of 
the  legislature  whenever  it  operates  of  itself  without  the  aid  of  any 
legislative  provision.  But  when  the  terms  of  the  stipulation  import  a 
contract,  when  either  of  the  parties  engages  to  perform  a  particular  act, 
the  treaty  addresses  itself  to  the  political,  not  the  judicial,  department, 
and  the  legislature  must  execute  the  contract  before  it  can  become  a 
rule  for  the  court.'" 

Mr.  F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Mendez,  June  28,  1879.     MSS. 
Notes,  Spain. 

A  treaty,  if  within  the  treaty-making  i)ower,  overrides  State  legisla- 
tion. 

Ware  v.  Hylton,  3  Dall.,  199 ;   Fisher  v.  Harnden,  1  Paine,  55 ;  Hauenstein  v. 
Lynham,  100  U.  S.,  483. 

The  execution  of  a  treaty  between  nations  is  to  be  demanded  from, 
and,  in  general,  superintended  by,  the  executive  of  each  nation,  and, 
therefore,  whatever  the  decision  of  the  court  may  be  relative  to  the 
rights  of  parties  litigating  before  it,  the  claim  upon  the  nation,  if  un- 
satisfied, may  still  be  asserted.  But  yet  where  a  treaty  is  the  law 
of  the  land,  and  as  such  affects  the  rights  of  parties  litigating  in 
court,  that  treaty  as  much  binds  those  rights,  and  is  as  much  to  be 
regarded  by  the  court  as  an  act  of  Congress ;  and,  although  restora- 
tion may  be  an  executive  act,  yet  to  condemn  a  vessel,  the  restoration 
of  which  is  directed  by  a  law  of  the  laud,  would  be  a  direct  infraction 
of  that  law,  and  consequently  improper. 
U.  S.  V.  The  Peggy,  1  Cranch,  109. 

The  convention  of  1800,  between  France  and  the  United  States,  ena- 
bling the  people  of  one  country  holding  lands  in  the  other  to  dispose 

71 


§  138.]   *  TREATIES.  [chap.  VI 

of  the  same  by  tostameiit,  aud   to  inlierit  lands  in   the  other,  without 
being  naturalized,  has  been  held  to  dispense  with  limitations  in  a  state 
statute  on  the  alien  inheritance. 
Chirac  v.  Chirac,  2  Wheat.,  259. 

The  expiration  of  the  treaty  does  not  divest  ri<;hts  acquired  under  it. 
Ibid;  800  ivfra,  ^  148a. 

Since  by  the  Constitution  treaties  made  in  jyursuance  thereof  are  to 
be  the  law  of  the  land,  they  are  to  be  regarded  by  the  courts  as  equiv- 
alent to  a  legislative  act  when  they  operate  directly  u])on  a  subject; 
but  if  they  merely  stipulate  for  future  legislation  by  Congress,  they 
address  themselves  to  the  i)olitical  and  not  to  the  judicial  department, 
and  the  latter  must  await  the  action  of  the  former. 
Foster  V.  Neilson,2  Pet.,  2.')3. 

That  a  treaty  is  no  more  the  supreme  law  of  the  land  than  is  an  act 
of  Congress  is  shown  by  the  fact  that  an  act  of  Congress  vacates  pro 
tanfo  a  prior  inconsistent  treaty.  Whenever,  therefore,  an  act  of  Con- 
gress would  be  unconstitutional,  as  invading'the  reserved  rights  of  the 
States,  a  treaty  to  the  same  effect  would  be  unconstitutional. 

See  Prevost  v.  Greenanx,  19  How.,  7;  but  see  Mr.  Suiuner's  letter  to  Mr.  Fish, 
April  21,  1870;  MSS.  Dept.  of  State;  cited  in  Mr.  J.  C.  B.  Davis,  Notes,  &c. 

liut  while  such  a  treaty  may  be  inoperative  municvpaUy^  it  may  in- 
ternationally subject  the  United  States  Government  to  foreign  claims 
based  on  its  non-execution. 

Supra,  $  9. 

A  treaty  executed  and  ratified  b^'  the  proper  authorities  of  the  Gov- 
ernment becomes  the  supreme  law  of  the  land,  and  the  courts  can  no 
more  go  behind  it,  for  the  purpose  of  annulling  its  effect  and  operation, 
than  behind  an  act  of  Congress. 

Fellows  V.  Blacksmith,  19  How.,  366,372. 

Territory  acquired  by  treaty  or  conquest  is  subject,  so  far  as  concerns 
titles  to  property  aud  prior  rights  of  status,  to  the  same  law  as  it  was 
subjected  to  before  the  transfer. 

U.  S.  V.  Moreuo,  1  Wall.,  400.     Supra,  U  3/. 

A  treaty  may  supersede  a  prior  act  of  Congress,  and  an  act  of  Con- 
gress may  supersede  a  prior  treaty. 

The  Cherokee  Tobacco,  11  Wall.,  616.  See  Taylor  v.  Morton,  2  Curtis,  454;  The 
Clintoa  Bridge,  1  Woolworth,  150. 

A  treaty  giving  the  subjects  of  a  foreign  state  (Switzerland)  the  privi- 
lege of  holding  real  estate  in  the  United  States  is  the  supreme  law  of  the 
land. 

Hauenstein  r.  Lynham,  100  U.  S.,  483;  aff.  Chirac  v.  Chirac,  2  Wheat.,  259; 
Cameal  r.  Banks,  10  Wheat.,  1*^1  :  Frederickson  r.  Louisiana, 23  How.,  445; 
infra,  §  163. 


CHAP.  VI.]  AUTHORITY   IN    THE    UNITED   STATES.  [§  138. 

A  treaty  is  primarily  a  compact  betweeu  iudepeudeut  uatious  and 
depends  for  the  enforcement  of  its  provisions  on  the  honor  and  the  in- 
terest of  the  Governments  which  are  parties  to  it.  If  these  fail,  its  in- 
fraction becomes  the  subject  of  international  reclamation  and  negotia- 
tion, which  may  lead  to  war  to  enforce  them.  With  this  judicial  tribunals 
have  nothing'  to  do.  But  a  treaty  may  also  confer  private  rights  on 
citizens  or  subjects  of  the  contracting  powers  which  axe  of  a  nature  to 
be  enforced  in  a  court  of  justice,  and  which  furnish,  in  cases  otherwise 
cognizable  in  such  courts,  rules  of  decision.  The  Constitution  of  the 
United  States  makes  the  treaty,  while  in  force,  a  part  of  the  supreme 
law  of  the  laud  in  all  courts  where  such  rights  are  to  be  tried.  In  this 
respect,  so  far  as  the  provisions  of  a  treaty  can  become  the  subject  of 
judicial  cognizance  in  the  courts  of  the  country,  they  are  subject  to  such 
acts  as  Congress  may  pass  for  their  enforcement,  modification,  or  repeal. 
Head  Money  Cases,  112  U.  S.,  580. 

The  stipulations  in  a  treaty  between  the  United  States  and  a  foreign 
nation  are  paramount  to  the  provisions  of  the  constitution  of  a  partic- 
ular State. 

Gordon  v.  Kerr,  1  Wasli.  C.  C,  322. 

A  treaty  is  the  supreme  law  of  the  land  in  respect  of  such  matters 
only  as  the  treaty-making  power,  without  the  aid  of  Congress,  can  carry 
into  effect.  Where  a  treaty  stipulates  for  the  payment  of  money  for 
which  an  ajipropriation  is  required,  it  is  not  oi)erative  in  the  sense  of 
the  Constitution.  Every  foreign  Government  may  be  presumed  to 
know  that,  so  far  as  the  treaty  stipulates  to  pay  money  the  legislative 
sanction  is  required. 

Turner  i'.  American  Baptist  Missionary  Union,  5  McLean,  347. 

Subsequent  legislation  may  municipally  abrogate  a  treaty  which  may 
nevertheless  continue  to  bind  internationally. 

Cherokee  Tobacco,  11  Wall.,  616;  aff.  1  Dill.,  264;  Taylor  v.  Morton,  2  Curtis, 
454;  2  Black,  481 ;  Ropes  v.  Clinch,  8  Blatch.,  304;  Bartram  v.  Robertson, 
15  Fed.  Rep.,  212 ;  Ah  Lung,  in  re.,  18  Fed.  Rep.,  28;  8upra,  $  9. 

A  stipulation  in  a  treaty  that  "  no  higher  or  other  duties  shall  be 
imposed  on  the  importation  into  the  United  States  of  any  article  the 
])roduce  or  manufacture  of  the  dominion  of  the  treaty-making  power 

*    *    *     than  are  or  shall  be  payable  on  the  like  articles,  being  the  pro- 
duce or  manutiicture  of  any  foreign  country,"  does  not  preclude  Congress 
from  i)assing  an  act  exempting  from  duty  like  products  and  manufac- 
tures imported  from  any  particular  foreign  dominion  it  may  so  favor. 
Whitney  v.  Robertson,  21  Fed.  Rep.,  560. 

An  act  of  Congress  repeals  an  inconsistent  provision  of  a  prior  treaty. 

5  Op.,  345,  Crittenden.  See,  however,  Marshall,  C.  J.,  in  1  Cranch,  109,  and 
Mr.  Cushing  in  6  Op.,  658.     And  see  supra  $  9. 

A  treaty,  when  proclaimed,  is  thenceforth  the  law  of  the  land,  lo  bo 
respected  as  such,  although,  as  in  the  case  of  many  laws  of  a  merely 

7a 


§  138.]  TREATIES.  [chap,  VI. 

muuicipal  character,  some  of  the  pro\isioiis  thereof  may  be  contingent 
or  executory  only. 

C  Op.,  T4S,  Cusbing,  1S54. 

A  treaty,  constitutionally  concluded  and  ratified,  abrogates  whatever 
law  of  any  one  of  the  States  may  be  inconsistent  therewith. 

A  treaty,  assuming  it  to  be  made  conformably  to  the  Constitntion  in 
substance  and  form,  has  the  legal  effect  of  repealing,  under  the  general 
conditions  of  the  legal  doctrine  that  '•  leges  posteriores  prioren  contrarias 
abrogant,'-  all  pre-existing  Federal  law  in  conflict  with  it,  whether  un- 
written, as  law  of  nations,  of  admiralty,  and  common  law,  or  written,  as 
acts  of  Congress.  A  treaty,  though  complete  in  itself,  and  the  unques- 
tioned law  of  the  land,  may  be  inexecutable  without  the  aid  of  an  act 
of  Congress.  But  it  is  the  constitutional  duty  of  Congress  to  pass  the 
requisite  laws.  But  the  need  of  further  legi.slation,  however,  does  not 
affect  the  question  of  the  legal  force  of  the  treaty  jjcr  se. 
6  Op.,  291,  CasLing,  1854. 

Treaty  stipulations  may  restrict  or  abolish  the  disability  of  aliens  as 
to  property  in  the  several  States. 
8  Op.,  411,  Gushing,  1657. 

A  treaty  not  in  itself  inconsistent  with  the  Constitution  of  the  United 
States  abrogates  all  prior  inconsistent  legislation,  whether  Federal  or 
State. 

8  Op.,  417,  CasLicg ;  6  Op.,  29;},  Gushing;  and  see  Ware  r.  Hylton,  3  Dall.,  199 ; 
Davis  r.  Concordia,  9  How.,2-i^. 

Under  the  Constitution,  treaties,  as  well  as  statutes,  are  the  law  of 
the  land,  both  the  one  and  the  other,  when  not  incon.sistent  with  the 
Constitution,  standing  upon  the  same  level  and  being  of  equal  force  and 
validity;  and,  as  in  the  case  of  all  laws  emanating  from  an  equal  au- 
thority, the  earlier  in  date  yields  to  the  later. 
13  Op.,  354,  Akennan,  1370. 

"During  the  administration  of  John  Quincy  Adams  several  treaties 
were  concluded,  in  which  broader  views  in  commercial  matters  began 
to  prevail.  It  was  agreed  that  whatever  kind  of  produce,  manufacture, 
or  merchandise  of  any  foreign  country  could  be  from  time  to  time  law- 
fully imported  into  the  United  States  in  their  own  vessels  might  also  be 
imported  in  vessels  of  the  other  power.  These  treaties  were  subscribed 
by  Henry  Clay,  Secretary  of  State  of  the  United  States,  and  the  pro- 
visions have  often  since  been  repeated  in  conventions  with  other  powers. 
The  expanding  commerce  of  the  United  States  induced  the  revival  at 
this  time  of  some  of  the  powers  respecting  national  vessels  in  foreign 
ports,  and  respecting  disputes  between  the  officers  and  crew  of  such 
vessels,  and  concerning  deserters,  which  had  been  conferred  upon  con- 
suls by  Jefferson's  convention  with  France  in  1788.  These  imi)ortant 
provisions  were  now  inserted  in  the  treaties  of  commerce,  and  continued 
to  b*>  until  the  revival  of  the  practice  of  concluding  exclusively  consular 
conventions,  which  had  lain  dormant  from  the  time  of  Jefferson's  mis- 
sion in  Paris. 

74 


CHAP.  VI  ]       JUDICIAEY  CANXOT  CONTROL  EXECUTIVE.  [§  139. 

"  ]\rany  commercial  treaties  were  coDcluded  during  the  administra- 
tioDS  of  President  Jackson  and  President  Van  Buren,  tbrongh  wiiich 
tlie  i)riuciples,  which  had  become  part  of  the  policy  of  the  United  States, 
were  extended  in  every  quarter  of  the  globe.  By  the  former  adminis- 
tration also,  long-pending  diflerences  with  France  were  set  at  rest  by  a 
couveution  signed  July  4,  1831 ;  and  a  treaty  was  concluded  with  the 
Ottoman  Porte,  under  which,  for  nearly  forty  years,  it  was  not  doubted 
that  the  citizens  of  the  United  States  withm  the  dominions  of  the  Porte 
enjoyed  certain  rights  of  extraterritoriality.  The  doubts  which  have 
since  arisen  will  be  considered  hereafter. 

"President  Polk  carried  out  with  assiduity  the  policy  of  the  nation 
by  extendiug  the  number  of  its  treaties  for  the  regulation  of  commerce 
and  navigation,  for  the  abolition  of  unjust  taxes,  and  for  the  regulation 
of  international  postal  relations,  and  he  added  to  the  national  domain 
by  the  treaty  of  peace  with  Mexico,  and  concluded  a  treaty  with  Great 
Britain,  which  was  intended  on  the  part  of  the  United  States  to  be  a 
final  settlement  of  the  disputed  Xorthwestern  boundary.  He  also 
caused  the  United  States  to  enter  into  a  treaty  with  2sew  Granada, 
whereby  they  agree  to  '  guarantee  positively  and  efficaciously  to  Xew 
Granada  *  *  *  the  perfect  neutrality  of  the  before-mentioned  Isth- 
mus' (Panama)  *  *  »  ami  <the  rights  of  sovereignty  and  prop- 
erty which  New  Granada  has  and  possesses  over  the  said  territory,'  the 
first  international  obligation  of  this  nature  incurred  since  1778. 

"During  President  Taylor's  short  administration  several  treaties  of 
commerce  were  entered  into  with  other  i)owers. 

"  President  Buchanan  released  the  commerce  of  the  United  States 
from  the  Danish  dues  at  the  Sound  and  Belts,  made  wider  and  broader 
the  friendly  relations  with  Japan,  and  he  added  to  the  number  of  the 
treaties  for  the  regulation  respecti^'ely  of  commerce,  of  extradition,  and 
of  international  postage. 

"  William  H.  Seward  was  the  Secretary  of  State  during  the  adminis- 
trations of  President  Lincoln  and  of  President  Johnson.  Under  his 
direction  of  the  Department  of  State,  the  treaties  of  commerce  and 
the  consular  and  extradition  conventions  were  widely  extended.  The 
commerce  of  the  United  States  was  relieved  from  the  Briinshausen  dues, 
the  navigation  of  the  Dardanelles  and  of  the  Bosphorus  was  regulated, 
and  the  Scheldt  dues  were  extinguished.  A  treaty  was  entered  into 
for  the  suppression  of  the  African  slave-trade,  in  which,  for  the  first 
time  since  the  adoption  of  the  Constitution,  it  was  agreed  that  an  alien 
might  sit  as  a  judge  in  a  court  holding  its  sessions  within  the  territories 
of  the  United  States.  Several  treaties  were  made  securing  the  recogni- 
tion of  the  right  of  expatriation  and  naturalization,  and  the  protection 
of  trade-marks  was  also  made  the  subject  of  a  treaty.  The  relations 
with  China,  too,  were  essentially  modified." 

Mr.  J.  C.  B.  Davis,  Notes,  «fcc.     See  more  fully  infra,  §  143. 

XI.  JUDICIARY  CAXXOT  COXXnOL  EXECUTIVE  IX  TREATY  MAKIXG. 

§  139. 

The  negotiation  and  modification  of  treaties  is  a  prerogative  of  the 
Executive,  with  which  the  courts  cauuot  interfere. 

Frelinghuysen  v.  Key,  110  U.  S.,  64  ;  Great  West.  Ins.  Co.  r.  U.  S.,  19  C.  CIs.,  206 ; 
S.  C,  112  U.  S.,  l'J3,  to  same  cflfect ;  Angarica  tie  la  Riia  r.  Bayard, 4  Mackey, 
310;  cited,  infra,  ^  246. 

75 


§  140.]  •  TREATIES.  [CIIAP.  VI. 

The  granting  an  injunction  to  restrain  the  Executive  from  making 
l)aynient  under  a  treaty  is  not  witbiu  the  province  of  the  judiciary. 
:5  0i>.,  471;  Grundy,  1839. 

"I  have  had  the  honor  to  receive  your  letter  of  the  29th  ultimo  in  re- 
lation to  the  pending  application  in  the  supreme  court  of  this  District 
for  a  writ  of  mandamus  against  the  Secretary  of  State  at  the  instance 
of  La  Abra  Silver  Mining  Company,  in  wliich  you  embody,  as  your 
own,  the  report  of  JMr.  Solicitor-General  Phillips  to  you.  Allow  me  to 
express  my  thanks  for  the  prompt  attention  you  have  given  to  the 
matter  and  (he  personal  interest  you  have  taken  in  it. 

"The  suggestion  of  Chief-Justice  Cartter,  as  reported  by  Mr.  Phillips, 
namely,  that  ii  pro  forma  judgment  with  a  view  to  an  appeal  to  the 
Supreme  Court  of  the  United  States  was  all  that  was  wanted  by  the 
parties  cannot  be  entertained  for  a  moment  with  my  consent.  I  have 
a  most  decided  objection  to  any  judgment,  pro  forma  or  otherwise,  being 
rendered  against  the  Secretary  of  State. 

"  The  pending  case  involves,  as  I  view  it,  an  important  question  in 
regard  to  the  relative  powers  of  the  several  branches  of  the  National 
Government.  It  is  for  this  reason,  if  no  other,  entitled  to  a  full  heaiing 
in  every  court  through  which  it  may  have  to  pass  before  reaching  the 
Supreme  Court  of  the  United  States.    *     *     * 

"  The  powers  of  the  President  are  fixed  by  the  Constitution.  Fie  has 
in  this  matter  only  exercised  the  treaty-making  power.  Congress^  a  co- 
ordinate branch  of  the  Government,  cannot  enlarge  those  powers,  and 
most  certainly  cannot  restrict  or  limit  them." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Brewster,  Dec.  4, 1882.     MSS.  Dom.  Let. 

As  will  hereafter  be  seen,  the  Department  of  State  can  arbitrate  or 
settle,  at  its  own  discretion,  all  claims  referred  to  it  under  treaties. 

Infra,  ^  222. 

XII.  SPECIAL  TREATIES. 

(1)  Argextixe  Republic. 

§  140. 

A  history  of  the  diplomatic  relations  of  the  United  States  with  Buenos 
Ay  res  and  the  Argentine  Republic  is  given  in  instructions  from  Mr. 
Marcy,  Secretary  of  State,  to  Mr.  Peden,  June  29,  1854. 

MSS.  Inst.,  Arg.  Rep. 

The  treaty  of  the  Argentine  Confederation  with  France  for  the  free  navigation 

of  the  rivers  Parana  and  Uruguay  will  be  found  in  J5rit.  For.  St.  Pap.  fir 

1853-'54,  1071. 
For  other  treaties  aa  t  >  the  same  rivers,  see  supra,  $  30. 

76 


CHAP.  VI.]        AUSTRIA-HUNGARY:    BARBARY  POWERS.    [§§141,  141a. 

(2)  AUSTRIA-HUNGAUY. 

§  141. 

Article  1  of  treaty  of  1870  with  the  Aiistro-Hungarian  monarchy 
recognizes  the  right  of  an  American  citizen  to  change  his  nationality 
and  become  a  citizen  of  Austria ;  but  he  must  have  had  a  residence 
in  Austria  of  five  years,  and  have  been  naturalized  there,  before  the 
United  States  is  bound  to  consider  the  person  so  naturalized  an  Aus- 
trian citizen. 

14  Op.,  154,  Williams,  1872.     See  infra,  H^l. 

"  The  period  for  exchanging  the  ratifications  of  the  commercial  treaty 
of  1829  witb  Austria  was  extended,  with  the  advice  and  consent  of  the 
Senate  (February  3,  1831).  The  Emperor's  consent  was  expressed  in 
the  certificate  of  ratification  February  10, 1831.  The  treaty  was  com- 
municated to  the  House  of  liepresentatives  by  the  President  on  the  2d 
of  March,  1831. 

"  On  the  13th  of  February,  1850,  the  Senate  extended  the  time  for 
exchanging  the  ratifications  of  the  treaty  of  1848  to  July  4,  1850,  and 
the  ratifications  were  exchanged  on  the  23d  of  that  month. 

"  The  naturalization  treaty  was  sent  to  the  Senate  on  the  12th  day  of 
December,  1870,  with  the  correspondence  relating  to  it.  The  ratifica- 
tions not  being  exchanged  within  the  limitations  of  the  treaty,  the  time 
was  extended  three  months." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

(3)  Barbary  Powers. 

§  Ula. 

"  'Before  the  war  of  Independence,  about  one-sixth  of  the  wheat  and 
flour  exported  from  the  United  States,  and  about  one-fourth  in  value  of 
their  dried  and  pickled  fish,  and  some  rice,  found  their  best  markets  in 
the  Mediterranean.' 

"  This  trade  then  employed  about  12,000  men  and  20,000  tons  of  ship- 
ping, and  was  protected  by  British  passes. 

"The  war  of  the  Revolution  having  abrogated  this  protection.  Con- 
gress early  took  into  consideration  jjlans  for  substituting  another  in  its 
place. 

"In  a  sketch  for  a  treaty  which  that  body,  on  the  17th  of  September, 
1776,  agreed  that  their  commissioners  should  endeavor  to  conclude  with 
the  French  King,  an  article  was  inserted  to  the  ettect  that  France  should 
protect,  defend,  and  secure,  as  far  as  in  its  power,  the  subjects,  people, 
and  inhabitants  of  the  United  States  and  their  vessels  and  effects 
against  all  attacks,  assaults,  violences,  injuries,  depreciations,  or  plun- 
derings,  by  or  from  the  King  or  Emperor  of  Morocco,  or  Fez,  and  the 
states  of  Algiers,  Tunis,  and  Tiipoli,  and  any  of  them,  and  every  other 
prince,  state,  and  ])0\ver  on  the  coast  of  Barbary,  and  the  commission- 
ers were  instructed  that  this  article  '  ought  to  be  obtained,  if  ]>ossil)ie; 
but  should  be  waived  rather  than  that  the  treaty  should  be  interrui>ted 
by  insisting  upon  it.'    The  commissioners  did  not  obtain  such  protec- 

77 


§  141a.]  TREATIES.  [CUAP.  VI, 

tion.  iDstead  of  it,  tlie  King  of  France,  in  tlie  treaty  of  1778,  agreed 
to  'eni])loy  his  good  ofiHces  and  interjjosition'  with  those  ])owers,  'in 
order  to  i)r()vide  as  fully  and  ellicaciously  as  jjossible  for  the  benefit, 
conveniency,  and  safety  of  the  said  United  States,  and  each  of  them, 
t4ieir  subjects,  people,  and  iidiabitants,  and  their  vessels  and  effects, 
against  all  violence,  insnlts,  attacks,  or  depredations  on  the  i)art  of  the 
said  ])rinces  and  states  of  Barbary,  or  their  subjects.' 

"  The  recoy^nition  of  the  independence  of  the  United  States  by  Great 
Britain  found  no  steps  taken  in  this  direction,  for  reasons  which  ai)i)ear 
in  the  official  corres})ondence.  ]\Ir.  Adams  therefore  wrote  to  the 
President  of  Congress  on  the  10th  Septend)er,  1783:  'There  are  other 
powers  with  whom  it  is  more  necessary  to  have  treaties  than  it  ought 
to  be  ;  I  mean  IMorocco,  Algiers,  Tunis,  and  Tripoli.  *  *  *  It  Con- 
gress cau  lind  funds  to  treat  with  the  Barbary  Powers,  the  ministers 
here  are  the  best  situated.  *  *  *  Ministers  here  may  carry  on  this 
negotiation  bj-  letters,  or  may  be  empowered  to  send  an  agent,  if  nec- 
essary.' 

'•Congress  authorized  a  commission  to  be  issued  to  Mr.  Adams,  Dr. 
Franklin,  and  Mr.  Jetferson,  which  was  done  on  the  12th  of  JMay,  1784, 
empowering  them,  or  a  majority  of  them,  to  treat  with  Morocco,  Algiers, 
Tripoli,  and  Tunis,  as  well  as  with  the  several  powers  of  Europe. 

"  On  the  2Sth  of  Marcli,  1785,  these  commissioners  addressed  a  joint 
note  to  Count  de  Vergennes,  asking  his  advice  upon  the  conduct  of  their 
negotiations,  and  requesting  that  the  good  offices  of  the  French  King 
should  be  inter])osed  with  the  Emperor  of  Morocco,  according  to  the 
tenor  of  the  eighth  article  of  the  treaty  of  1778. 

"  Franklin  left  I'aris  for  America  on  the  12th  of  July,  1785,and  Adams 
and  Jefierson,  iinding  themselves  engaged  in  the  negotiation  of  treaties 
with  European  powers,  and  having  received  authority  to  empower  sub- 
stitutes to  negotiate  with  the  Barbary  States,  in  October  of  that  year 
commissioned  Thomas  Barclay  to  negotiate  with  Morocco,  and  John 
Lamb  to  negotiate  with  Algiers,  and  they  reported  their  proceedings  to 
Jay,  who  referred  them  to  Congress,  with  a  recommendation  that  they 
hould  be  approved. 

"In  the  spring  of  the  next  jear  Jefferson  was  induced  to  go  to  Lon- 
don to  meet  Abdrahaman,  the  Trii)oline  embassador,  who  expressed  a 
desire  to  negotiate  with  the  commissioners.  They  found  'that  30,000 
guineas  for  his  employers,  and  £3,000  for  himself,  was  the  lowest  terms 
upon  which  a  perpetual  peace  could  be  made,'  and  that  Tunis  would 
treat  upon  the  same  terms,  *■  but  he  would  not  answer  for  Algiers  or 
Morocco.'  These  demands  were  so  exorbitant  that  the  negotiations 
were  suspended. 

"Barclay  was,  however,  instructed  to  continue  his  negotiations  with 
Morocco. 

"  By  the  IGth  of  July,  178G,  a  treaty  with  Morocco  was  nearly  agreed 
upon.  After  its  conclusion  Count  de  Vergennes  wrote  to  the  French 
minister  in  the  United  States  :  '  You  can  assure  the  Congress  that  the 
King  will  seize  with  eagerness  all  occasions  to  facilitate  their  good  in- 
telligence with  the  Barbary  Powers.  *  ♦  *  'fhe  treaty  wlii(-h  has 
been  recently  signed  with  this  last  ])ower  (Morocco)  *  ♦  *  will  be 
the  best  refutatuju  of  the  suspicions  which  many  public  papers  are  will- 
ing to  inspire  against  our  system  of  i)olicy.' 

"  On  the  death  of  the  Emperor  who  concluded  the  treaty,  $20,000  was 
appropriated  by  Congress  '  to  the  purpose  of  effecting  a  recognition  of 
the  treaty    ♦     *     *     with  the  new  Emperor;'  and  instructions  were  « 

78 


CHAP.  VI  ]  BARBARY    POWERS.  [§   141rt 

sent  to  secure  the  recognition  for  the  $20,000,  if  possible ;  if  not,  for 
$25,000. 

"  The  treaty  was  renewed,  or  rather  recognized,  by  the  new  Emperor, 
who  wrote  to  President  Washington :  '  We  have  received  the  present  at 
his  [the  consul's]  hands  with  satisfaction.  *  »  *  Continue  writing 
letters  to  us;  *  *  *  we  are  at  peace,  tranquillity,  and  friendship 
with  you,  in  the  same  manner  as  you  were  with  our  father,  who  is  in 
glory.' 

"  In  1803  a  Moorish  pirate  captured  an  American  vessel,  which  was 
released  by  force  by  an  American  frigate;  and  when  hostile  demonstra- 
tions were  threatened  for  this  breach  of  the  treaty,  the  Emperor  issued 
an  order  that  'the  American  nation  are  still,  as  they  were,  in  peace  and 
friendship  with  our  person,  exalted  of  God.' 

"The  treaty  concluded  in  1787,  to  endure  for  fifty  years,  was,  in  its 
forty-ninth  year,  renewed  for  another  fifty  years,  and  for  such  further 
time  as  it  should  remain  unafi'ected  by  notice. 

"In  1865  a  convention  was  concluded  for  maintaining  a  light-house  at 
Cape  Spartel.  The  correspondence  respecting  it  will  be  found  in  the 
Senate  documents. 

"About  the  commencement  of  the  year  1791  Mr.  Jefiersou,  the  Secre- 
tary of  State,  reported  to  President  Washington  that  there  were  held 
captive  as  slaves  in  Algiers  two  American  masters,  for  whose  ransom 
3,000  sequins  each  were  demanded  ;  two  mates,  for  whom  2,000  sequins 
each  were  asked  ;  and  ten  sailors,  held  at  750  sequins  each ;  and  he  re- 
ported to  Congress  that  the  navigation  into  the  Mediterranean  had 
not  been  resumed  at  all  since  the  peace;  and  that  the  sole  obstacle  had 
been  the  unprovoked  war  with  Algiers,  and  the  sole  remedy  must  be  to 
bring  that  war  to  an  end,  or  to  palliate  its  effects. 

"  On  the  8th  of  May,  1792,  President  Washington  asked  the  Senate 
whether  in  case  a  treaty  should  be  concluded  with  Algiers  for  the  ran- 
soni  of  the  thirteen  Americans  for  a  sum  not  exceeding  $40,000,  the 
Senate  would  consent ;  and  whether  they  would  consent  to  a  trea.ty  of 
peace  stipulating  for  the  payment  of  $25,000  on  the  signature  of  the 
treaty,  and  a  like  sum  annually?  The  Senate  answered  each  question  in 
the  affirmative,  and  the  President  appointed  Admiral  John  Paul  Jones 
a  commissioner  to  negotiate  a  treaty,  with  Thomas  Barclay  as  a  substi- 
tute, in  case  Jones  should  not  act.  Jones  died  before  the  appointment 
could  reach  him,  and  Barclay  died  soon  after,  without  going  to  Mo'occo. 
Col.  David  Humphreys,  then  the  minister  of  the  United  States  at  Lisbon, 
was  thereupon  appointed  a  plenipotentiary  in  their  place.  Eight  hun- 
dred thousand  dollars  were  placed  at  his  disposal,  and  he  was  instructed 
that 'the  President  has  under  consideration  the  mode  in  which  the 
$800,000  may  be  expended  in  the  purchase  of  a  peace;  that  is,  how 
much  shall  be  applied  to  the  ransom,  and  how  much  to  the  ])eace.' 
^lore  precise  instructions  foUoAved  on  tlie  25th  of  August,  1794.  A 
Swede  named  Skjoldebrand,  brother  of  the  Swedish  consul  at  Algiers, 
interested  himself  in  the  unlbrtunate  captives,  and  informed  Humph- 
reys (who  remained  at  Lisbon)  that  a  peace  could  be  obtained  for  the 
United  States  for  about  the  following  sums  (in  dolhirs),  viz  :  '  Eor  the 
treasury,  in  money  or  timber  of  construction,  fifty  thousand;  for  the 
great  ofticers  and  relations  of  the  Dey,  one  hundred  thousand  ;  consular 
present,  thirty  thousand;  redemption  of  slaves,  from  two  hundred  to 
two  hundred  and  lifty  thousand;  in  all,  between  six  and  seven  hundred 
tlious^Mid  ;  together  with  au  annual  tribute  of  from  twenty-five  to  thirty 

79 


§  141rt.]  TREATIES.  [CIIAP.  VI. 

tbousand,  and  a  eonsnlar  present  every  two  years  of  abont  nine  or  ten 
thon.^an*!  dollars.  Iluinplireys  sent  tliis  eoninninication  home,  a)id  re- 
ceived instructions  '  that  Skjohh'brand's  terms  are  to  be  acceded  to  if 
better  cannot  be  obtained.'  Only  a  few  days  before  this  instruction 
was  written  the  Secretary  of  State  had  informed  Colonel  Unmphreys  of 
the  wishes  of  the  Government  and  the  country  on  this  subject:  '  You 
are  by  this  time,'  he  said,  'ai)prised  of  the  expectation  of  the  President, 
that  Vou  will  continue  your  labors  on  this  head,  and  of  your  title  to 
drawVor  eijiht  hundred  thousand  dollars,  to  soothe  the  Dey  into  a  peace 
and  ransom.  The  humanity  of  our  countrymen  has  been  lon<;  excited 
in  behalf  of  our  suflerinfj  fellow-citizens.'  In  ]\Iaich,  1795,  Donaldson, 
the  consul  to  Tunis  and  Tri])oli,  was  associated  with  Ilumi)hreys,  and 
the  latter  was  also  authorized  to  emjdoy  Skjoldebrand  in  nei-otiatin^ 
the  treaty  with  the  Dey.  Joel  Barlow  was  added  to  the  ne;j;otiators 
by  Monroe  and  Humphreys  in  Eurojje.  Donaldson  arrived  in  Algiers 
oil  the  od  of  Se])tember,  and  concluded  the  treaty  on  the  5th,  on  which 
day  Barlow  arrived,  and  they  joined  in  their  report  to  Humphreys. 

''Congress  was  informed  by  President  Washington,  in  his  speech  at 
the  opening  of  the  second  session  of  the  Fourth  Congress,  of  the  proba- 
bility that  the  treaty  would  be  concluded,  'but  under  great,  though 
inevitable  disadvantages  in  the  jiecuniary  transactions  occasioned  by 
that  war.'  A  few  days  later  the  House  called  for  information  as  to  the 
measures  taken  to  carry  the  treaty  into  effect,  which  was  communi- 
cated confidentially  on  the  0th  January,  1797.  The  bill  making  appro- 
priations for  these  objects  was  discussed  with  closed  doors,  and  was 
l)assed  February  22,  1797,  by  C.'J  ayes  and  19  nays.  The  Secretary  of 
the  Treasury  estimated  the  whole  ex])ense  of  fulfilling  the  treaty  at 
$992,403.25.  In  March,  1802,  President  Jefferson  was  able  to  advise 
Congress  that  '  the  sums  due  to  the  Government  of  Algiers  are  now 
fully  paid  up.' 

"In  1808,  an  inquiry  being  made  by  Congress  respecting  the  pay- 
ments to  Algiers,  the  Secretary  of  State  reported  that  they  were  '  of 
two  kinds:  (1)  that  stipulated  by  treaty,  viz:  twelve  thousand  sequins, 
equal  to  twenty  one  thousand  six  hundred  dollars,  made  annually  in 
naval  stores.  (2)  Those  made  in  conformity  with  what  is  called  usage 
at  Algiers,  by  which  it  is  understood  we  are  bound.  These  are:  (1) 
the  present  on  the  x^resentation  of  a  consul,  $20,000.  (2)  The  biennial 
presents  to  the  officers  of  the  Government,  estimated  at  $17,000.  (3) 
Incidental  and  contingent  presents,  as  well  on  the  promotion  of  the 
principal  officers  of  the  Dey  and  regency,  as  for  the  attainment  of  any 
important  object.     Of  these  no  estimate  can  be  made.' 

''The  course  pursued  by  Algiers  during  the  last  war  with  Great 
Britain  induced  President  Madison,  in  February,  1815,  to  recommend 
Congress  to  declare  war  against  tiie  Dey.  The  committee  to  whom  the 
message  was  referred  reported  that  war  existed  and  was  being  waged 
by  the  Dey  against  the  United  States.  A  naval  force  was  despatched 
to  Algiers,  and  an  Algerian  frigate  and  brig  were  captured  en  route  to 
that  place.  The  squadron  arrived  off'  Algiers  on  the  28th  of  June,  and 
on  the  29th  opened  communications  with  the  Government.  The  next 
day  the  Dey  proposed  a  treaty.  The  American  negotiators  replied  by 
forwarding  a  draft  for  a  treatj',  and  by  declaring  that  '  the  United 
States  would  never  stij)ulate  for  paying  tribute  under  any  form  what- 
ever.' The  Dey  and  his  officers  asked  for  time,  but  it  was  refused. 
'They  even  pleaded  for  three  hours.  The  reply  was  "not  a  minute^" 
and  the  treaty  was  signed  and  the  prisoners  released.' 

80 


CHAP.  VI.]  BAliBARY   POWEES.  [§  141a. 

"Tlie  papers  relating  to  the  ouly  remaining  treaty  with  Algiers  (that 
of  1816)  will  be  fonnd  in  5  F.  E.  F.,  133.//'. 

"  On  the  4th  of  November,  179G,  Barlow  concluded  a  treaty  with  the 
Bashaw  of  Tripoli.  '  The  price  of  the  peace  was  advanced '  to  the 
United  States  by  the  Dey  of  Algiers.  But  the  Bashaw  did  not  long 
rest  contented.  In  April,  1800,  he  told  Cathcart,  the  American  con- 
sul, to  say  to  the  President  that  he  was  '  pleased  with  the  proflers 
of  friendship,'  but  'that  had  his  ])rotestations  been  accompanied  with  a 
frigate  or  brig  of  war  *  *  *  he  would  be  still  more  inclined  to  be- 
lieve them  genuine.'  On  the  12th  of  May  he  said  to  him,  '  why  do  not 
the  United  States  send  me  a  voluntary  present?  *  *  *  I  am  an  in- 
dependent prince  as  well  as  the  Basbaw  of  Tunis,  and  I  can  hurt  the 
commerce  of  any  Dation  as  much  as  the  Tunisians.'  The  same  month 
he  wrote  to  the  President, '  Our  sincere  friend,  we  could  wish  that  these 
your  expressions  were  followed  by  deeds,  and  not  by  empty  words. 
*  *  *  If  only  flattering  words  are  meant,  without  performance,  every 
one  will  act  as  he  finds  convenient.  We  beg  a  speedy  answer,  without 
neglect  of  time,  as  a  delay  on  your  part  cannot  but  be  iirejudicial  to 
your  interests.' 

''  The  answer  made  was  a  naval  squadron  and  a  war  against  Tripoli 
on  land  and  at  sea,  which  was  terminated  on  the  4th  of  June,  1805,  by 
a  treaty  signed  on  board  of  an  American  mau-ofwar  in  the  harbor  of 
Tripoli.  Nothing  was  paid  for  the  peace.  Prisoners  were  exchanged 
man  for  man,  and  $00,000  were  paid  by  the  United  States  for  the  release 
of  the  number  of  American  prisoners  in  the  hands  of  the  Tripolines  over 
and  above  the  number  of  Tripolines  in  the  hands  of  the  Americans. 
They  were  about  two  hundred. 

"  The  treaty  with  Tunis  was  negotiated  under  the  directions  of  Bar- 
low in  1797.  It  cost  one  hundred  and  seven  thousand  dollars,  viz: 
$35,000,  regalia  ;  $50,000,  peace  ;  $12,000,  peace  presents  ;  $4,000,  con- 
sul's i:)resents;  and  $0,000  secret  service.  The  Senate  advised  its  rati- 
fication, on  condition  that  the  14th  article  should  be  modified.  This 
modification  appears  to  have  been  assented  to  in  1799.  See  2  F.  H.  F., 
799,  and  3  F.  li.  F.,  394,  for  correspondence,  «&c.,  respecting  other  ques- 
tions arising  between  the  two  powers. 

"  In  1824  the  modified  articles  were  agreed  to  in  the  form  in  which 
they  now  stand. 

"  In  the  interesting  report  of  Jefferson  to  the  House  of  Eepresenta- 
tives  concerning  the  Mediterranean  trade,  which  has  been  already  re- 
ferred to,  three  modes  of  dealing  with  the  Barbary  pirates  are  indicated : 
(1)  To  insure  vessels  and  cargoes  and  to  agree  upon  a  fixed  rate  of  ran- 
som for  prisoners.  (2)  To  purchase  peace.  (3)  To  conquer  a  peace; 
and  he  concludes:  '  It  rests  with  Congress  to  decide  between  war,  trib- 
ute, and  ransom,  as  the  means  of  re-establishing  our  Mediterranean 
commerce.' 

"Under  the  policy  adopted  by  Congress  the  'total  amount  of  real 
expenditures'  'exclusive  of  sundry  expenses  incurred  but  not  yet  ])aid' 
were  stated  by  the  Secretary  of  the  Treasury,  on  the  30th  July,  1802,  at 
$2,040,137.22.     This  was  before  the  war  with  Tripoli. 

"The  statutes  under  which  pavments  were  made  are  the  following: 
1791,  ch.  10,  1  Stat.  L.,  214;  1792,  ch.  24,  ibid.,  250;  1790,  ch.  19,  ibid., 
400;  1797,  ch.  12,  ibid.,  505;  1797,  ch.  12,  ihid.,  553;  17(KS,  ch.  18,  ibid.. 
544;  1799,  (;h.  28,  ibid.,  723;  1800,  ch.  47,  2  Stat.  L.,  0(1;  1803,,  ch.  19, 
ibid.,  215 ;  1804,  ch.  21,  ibid.,  209  ;  1805,  ch.  21,  ibid.,  321 ;  1800,  ch.  33, 

S.  Mis.  102— VOL.  II 0  ^"^1 


§§  142,  143.]  TREATIES.  [CIIAr.  VI. 

ibid.j  388 ;  1807,  cli.  29,  ibid.,  43G ;  ami  from  this  time  lorward  there 
was  au  annual  api^'opiiatiou  until  the  tribute  was  terminated." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

For  an  account  of  uegotiatious  with  the  Baibaiy  Powers,  see  3  Life  of  Picker- 
ing, 271  ;  2  Lyniau  Diplomacy  of  U.  S.,  chap.  xiii. 

For  tbo  details  of  the  negotiations  with  Algiers  in  1795-'9G,  sco  Todd's  Life  of 
Barlow,  1886,  chap.  vi.     As  to  Tripoli  and  Turkey,  see  infra,  $^  1G4,  165. 

(4)  Bavauia. 
§  142. 

An  exposition  of  the  naturalization  treaty  with  Bavaria  is  given  in 
the  letter  of  Mr.  Fish,  Sec.  of  State,  to  Mr.  SVeil,  April  14,  1870.  MSS. 
Dom.  Let. 

See  ivfra,  ^^  171,  ff. 

The  convention  between  the  United  States  and  Bavaria  of  1853  was 
not  abrogated  by  the  operation  of  the  constitution  of  the  German  Em- 
pire of  1871. 

In  re  Hermann  Thomas,  12  Blatch.,  370. 

"  The  treaty  (of  1845  with  Bavaria)  was  submitted  to  the  Senate,  and 
ratified  by  it  on  the  IHth  March,  1845,  with  an  amendment  striking  out 
from  the  third  article  the  words  '  real  and.'  The  copy  for  exchange,  with 
this  amendment,  was  sent  to  Mr.  Wheaton,  and  a  coi)y  was  transmitted 
by  him  to  the  Bavarian  minister  at  Berlin  ;  and  after  long  deliberation 
the  amendment  was  accepted  by  the  Bavarian  Government." 

Mr.  J.  C.  B.  Davis,  Notes,  «fcc. 

(5)    BliAZIL. 

§  143. 

For  criticism  on  commercial  discriminations  in  Brazil  against  the 
tJnited  States,  see  Mr.  Forsyth,  Sec.  of  State,  to  I\[r.  Hunter,  Nov.  29, 
183G.  MSS.  Inst.  Brazil.  Mr.  Upshur,  Sec.  of  State,  to  Mr.  Prollit, 
Aug.  1,  1843 ;  ibid.     Mr.  Cass  to  Mr.  Meade,  Sept.  15,  1857  ;  ibid. 

As  to  abrogated  treaties  with  Brazil,  see  supra,  137«. 

"On  the  26th  of  March,  1840,  Mr.  Chaves,  the  Brazilian  minister  at 
Washington,  wrote  thus  to  the  Secretary  of  State  :  '  The  Imperial  Gov- 
ernment is  obliged  not  to  prolong  the  duration  of  the  treaty  concluded 
between  the  Empire  and  this  liepublic,  of  December  12, 1828  ;  therefore, 
by  the  terms  contained  in  article  1 1  of  the  said  treaty,  at  the  expiration 
of  twelve  months  from  thisdate  the  said  treaty  will  l3e  terminated,  only 
for  the  articles  relating  to  commerce  and  navigation.'  (MSS.  Records, 
Dept.  of  State.)  This  notice  was  received  on  the  27th  of  March,  1840, 
and  was  answered  by  3Ir.  Forsyth,  Secretary  of  State,  on  the  20th  of 
June,  1840,  thus:  'Although  each  i)arty  has  reserved  to  itself  the  right 
of  terminating  the  treaty  at  the  expiration  of  twelve  months  from  the 
date  of  the  notification  of  its  intention,  yet  the  i)rivilege  of  giving  such 
notification  is  so  restricted  that  neither  party  can  give  it  before  the 

82 


CHAP.  VI. J  CHINA.  [§  144. 

expiration  of  the  twelve  years  stipulated  for  the  duration  of  the  treaty ; 
that  cousequentlj'  the  earliest  date  at  which  the  notice  intended  to  be 
conveyed  by  Mr.  Chaves'  note  can  be  g;iven,  is  the  12th  of  December 
of  this  3'ear,  and  that  the  earliest  period  at  which,  under  any  circum- 
stances, the  treat}'  can  cease  to  be  operative,  is  the  12th  of  December 
of  the  year  1841.  The  President,  however,  anxious  at  once  to  gratify 
the  wishes  of  the  Brazilian  Government,  and  to  show,  by  his  readiness 
to  comply  with  the  spirit  of  the  treaty,  the  sincerity  of  the  disposition 
with  which,  in  all  its  clauses,  it  has  been  fulfilled  by  the  United  States, 
is  willing-  to  overlook  the  departure  from  the  strict  letter  of  the  instru- 
ment involved  in  the  premature  notice  given  in  Mr.  Chaves'  note,  and 
to  receive  said  notice  as  if  given  in  accordance  with  the  terms  of  the 
treaty  at  the  expiration  of  the  twelve  years.'" 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

For  tliG  correspondence  in  the  negotiation  of  the  treaty,  see  House  Ex.  Doc. 
32,  1st  sess.,  25tli  Cong. 

(G)  China. 
§  144. 

As  to  relations  of  the  United  States  with  China,  see  generally  supra^ 
§  G7. 

'In  a  recent  dispatch  to  this  Department  in  relation  to  the  emigra- 
tion of  Chinese  subjects  from  their  own  land  to  other  countries,  one  of 
the  United  States  consuls  in  China  transmitted  for  the  information  of 
the  Department  what  purports  to  De  a  transcript  of  section  cclv  of  the 
penal  code  of  China,  as  translated  by  Sir  George  Thomas  Staunton,  F. 
R,  S.,  an  English  baronet,  whose  translation  is  reputed  to  be  the  only 
one  known.  The  law  referred  to  is  in  relation  to  the  vicarious  punish- 
ment to  be  inflicted  ui)on  the  relatives  of  a  Chinaman  who  may  renounce 
his  country  and  allegiance,  and  it  may  therefore  be  of  interest  to  this 
Government  in  connection  with  the  large  Chinese  immigration  on  our 
Pacific  coast,  to  be  conversant  with  the  nature  of  this  among  the  other 
Chinese  statutes  touching  the  general  subject. 

"  I  have  the  honor,  therefore,  to  inclose  herewith  a  copy  of  the  trans- 
lated law  as  received  from  the  consul,  and  to  inquire  whether  the  same 
correctly  represents  the  law,  and  whether  it  is  understood  to  be  now  in 
force  in  all  or  any  part  of  the  dominions  of  His  Imperial  Majesty." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Yung  Wing,  Feb.  17, 18S0.    MSS.  Notes,  China ; 
For.  Rel.,  1860. 

The  inclosed  document  is  as  follows  : 

"All  persons  renouncing  tiieir  country  and  allegiance,  or  devising  the  means  thereof, 
shall  be  IxlicadtMl ;  and  in  the  puuisbmeut  of  this  oll'ease  no  distinction  shall  be  made 
bet\vei;ii  principals  and  accessories. 

"The  iH(»|t(-rry  ot  all  such  criminals  shall  be  confiscated,  and  their  wives  and  chil- 
dren distributed  as  slaves  to  the  great  otUcers  of  state.  Tliose  females,  however,  with 
whom  a  marriage  iiad  not  been  comphstcd,  though  adjusted  by  contract,  shall  not; 
Knlli.T  under  this  law  ;  from  the  ix-ualtics  of  this  law,  excei)ti()n  shall  also  be  made  in 
favor  of  all  such  daughters  of  criuiiiials  as  shall  have  been  marric(l  into  other  I'liinilii  .-i. 
The  j)arents,  gratidpareuts,  brothers,  and  grandchildren  of  such  criminals,  whether 
habitually  living  with  them  under  the  sarao  roof  or  not,  shall  bo  i)orpetually  banished 
to  the  distance  of  '2,mj  H. 

83 


§  144.]  TREATIES.  [CIIAP.  VI. 

"All  tlio.se. wLo  purposely  conceiil  iiud  counivc  at  the  perpetratiou  of  tliis  crime 
«LalI  he  stiiui^lrtl. 

"  Those  who  inform  ajraiiist  ami  bring  to  justice  crimiuala  of  this  dcacriptiou  shall 
be  rewurdrd  with  tiie  whole  of  their  property. 

"  Those  who  are  privy  to  the  perpetration  of  this  crime  and  yet  omit  to  cive  any 
notice  or  information  tlicreof  to  the  maj^istrates  shall  be  punished  with  lOU  blows, 
and  banished  perpetually  to  the  distance  of  1^,000  It. 

"  If  the  eriuK'  is  contrived,  but  not  executed,  the  priueipal  shall  be  strangled  and  all 
the  accessories  shall  each  of  them  be  jjunishcd  with  lUU  blows  ami  perpetual  banish- 
ment to  the  distance  of  ^,Ul(0  U. 

"  If  those  who  are  privy  to  such  ineffective  contrivance  do  not  give  due  notice  and 
intbnuation  tltercof  to  the  magistrates,  they  shall  be  punished  with  100  blows  and 
banislied  for  three  years. 

"  All  persons  who  refuse  to  surrender  themselves  to  the  magistrates  when  required, 
and  seek  concealment  in  mountains  and  desert  jdaces  in  order  to  evade  either  the  jier- 
Ibrmauce  of  their  duty  or  the  jiunishuient  due  to  their  crimes,  shall  be  held  guilty 
of  an  intent  to  rel)el,  and  shall  therefore  sutler  puuisliuieiit  in  the  manner  by  this 
law  jtrovidcd.  If  such  persons  have  recourse  to  violence  and  defend  themselves  when 
pursued,  by  force  of  arms,  they  shall  be  held  guilty  of  an  overt  act  of  rebellion,  and 
punished  accordingly." 

"Your  communication  of  the  17th  ultimo,  coutitiniug  an  inclosure  of 
a  translation  of  section  cclv  of  the  penal  code  of  China,  as  translated 
bj  Sir  George  Thomas  Staunton,  and  inqiiirinjx  '  whether  the  same  cor- 
rectly represents  the  law,  and  whether  it  is  now  understood  to  be  in 
force  in  all  or  any  ])art  of  the  dominions  of  His  Imjierial  Majesty,'  was 
duly  received,  and  1  have  the  honor  to  say  in  reply  that  section  cclv  of 
the  Chinese  penal  code  referred  to  has  no  reference  whatever  to  Chinese 
emi^iration  as  contemplated  in  and  sanctioned  by  the  Burlingame  treaty. 
Under  the  jjeneral  head  of  '  Itenunciation  of  allegiance,'  the  specific 
acts  so  carefully  defined,  with  their  corresponding  punishments,  point 
to  the  presumi)tive  existence  of  a  lesser  or  greater  degree  of  treasonable 
intent  against  the  Government,  and  it  contemplates  conspiracies  and 
overt  acts  of  rebellion  against  the  Government  as  being  the  logical  se- 
quence of  '  renunciation  of  allegiance,'  which  antecedes  them  both  in 
time  and  existence ;  hence  their  classification  under  that  head  or  section. 
Emigration,  as  sanctioned  by  foreign  treaties,  is  taken  out  of  the  cate- 
gory of  treasonable  acts,  and  is  therefore  beyond  the  scoi)e  of  the  section. 

"  In  Article  V  of  the  Eurlingame  treaty  we  find  this  language,  which 
is  conclusive  on  this  point :  '  The  United  States  of  America  and  the 
Emperor  of  China  cordially  recognize  the  inherent  and  inalienable  right 
of  man  to  change  his  home  and  allegiance.' " 

Mr.  Yung  Wing  to  Mr.  Evarts,  Mar.  2, 1880  ;  ibid. 

"I  am  alike  honored  and  gratified  in  being  enabled  to  inform  you 
that  the  President,  by  and  with  the  advice  and  consent  of  the  Senate, 
has  appointed  two  of  our  distinguished  citizens,  Messrs.  John  F.  Swift. 
of  California,  and  William  Henry  Trescot,  of  South  Carolina,  as  com- 
missioners, to  act  conjointly  with  the  envoy  extraordinary  and  minister 
plenipotentiary  of  the  United  States  to  China,  to  negotiate  and  conclude 
a  settlement  by  treaty  of  such  matters  of  interest  to  the  two  Govern- 
ments, now  pending,  as  may  be  confided  to  them. 

"  It  is  expected  that  these  commissioners,  in  company  with  the  newly 
appointed  minister  to  China,  Mr.  James  13.  Angell,  will  sail  from  San 
Francisco,  en  route  to  Peking,  in  the  steamer  of  the  17th  of  June 
proximo. 

81 


CHAP.  VI.]  CHINA.  [§  144. 

"  I  have  iustructed  the  present  minister  near  the  Government  of  His 
Imperial  Majesty  to  take  as  early  an  opportunity  as  may  be  practicable 
and  proper  to  acquaint  the  Chinese  Government  with  the  high  mission 
of  these  gentlemen,  and  to  make  fitting  arrangements  in  advance  of 
their  arrival  for  their  appropriate  reception  in  their  elevated  diplomatic 
character  as  the  specially  commissioned  plenipotentiaries  of  the  Presi- 
dent and  Government  of  the  United  States. 

"I  take  a  singular  satisfaction  in  expressing  to  you,  and  through  you 
to  the  Government  you  so  worthily  represent,  the  assurances  of  the 
President's  deep  conviction  that  the  sending  of  this  high  commission  to 
China  cannot  fail  to  draw  closer  even  than  before  the  bonds  of  amity 
between  the  two  Governments,  by  opening  a  favorable  channel  for  the 
speedy  and  harmonious  adjustment  of  the  questions  of  moment  now 
pending  between  them,  and  that  the  result  of  its  wise  and  conciliatory 
counsels,  met  in  a  like  spirit  of  wisdom  and  conciliation  by  the  enlight- 
ened statesmen  who  rule  the  destinies  of  the  great  Empire  of  the  East, 
will  build  up  a  lasting  monument  of  the  good  will  and  kindred  interests 
which  animate  the  two  nations, 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Yung  Wiug,  May  25, 1880.    MSS.  Notes,  China  ; 
ibid. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  9th 
instant,  whereby  you  informed  this  Department  of  the  expected  arrival 
at  San  Francisco  of  the  Chinese  steamer  Wo  Chung,  being  the  first  of 
her  class  to  enter  an  American  port,  and,  in  order  to  prevent  any  mis- 
understanding in  regard  to  duties  or  other  charges,  you  request  that 
the  Secretary  of  the  Treasury  be  notified,  to  the  end  that  the  customs 
authorities  at  San  Francisco  may  extend  to  that  vessel  the  privileges 
conceded  to  vessels  of  other  nations  in  treaty  relations  with  the  United 
States.  The  matter  was  forthwith  referred  to  the  Secretary  of  the 
Treasury,  from  whom  1  now  learn  that  under  the  laws  of  the  United 
States  and  the  provisions  of  the  existing  treaties  with  China  it  will  be 
necessary  to  exact  tonnage  tax  at  alien  rates. 

"It  appears  that  discriminating  duties  of  tonnage  and  impost  on  for- 
eign vessels  and  their  cargoes  are  to  be  charged,  as  provided  by  law 
(§  4219,  Kev.  Stat.),  in  all  cases  except  where  exemption  is  secured  by 
treaty  stipulations,  or  where  special  exemption  is  proclaimed  by  the 
President  upon  evidence  of  reciprocal  exemj)tion  accorded  to  vessels  of 
the  United  States,  comformably  to  the  provisions  of  section  4228  of  the 
Revised  Statutes,  or  where  an  exemption  is  created  otherwise  by  law. 

"The  treaties  between  the  United  States  and  China  do  not  establish 
reciprocal  exemption  from  discriminating  taxes.  ^Yhile  the  tonnage 
tax  to  be  collected  from  American  vessels  in  the  open  ports  is  fixed  by 
the  treaty  of  June  18,  1858,  between  the  two  countries,  it  does  not  ap- 
pear that  Chinese  vessels  entering  those  ports  are  subject  to  the  same 

85 


$  144.]  TREATIES.  [CITAP.  VI. 

charges.  Neither  <]oe.5  it  appear  that  Chinese  vessels  resortiiifj;  to  the 
ports  of  the  United  States  may  not  trade  directly  with  the  closed  ports 
of  China  whither  American  vessels  are  debarred  from  going, 

"  Under  these  circumstances  the  Secretary  of  the  Treasury,  conform- 
ing to  the  prescriptions  of  the  statute  as  to  tonnage  duties,  section  4219 
of  the  Kevised  Statutes,  has  directed  the  collector  of  customs  at  San 
Francisco  to  exact,  u]>on  the  arrival  of  the  steamer,  tonnage  tax  at  alien 
rates,  in  addition  to  tlie  ordinary  tonnage  tax  paid  annually,  if  the  ves- 
sel be  engaged  in  regular  voyages  between  the  two  countries.  He  has, 
however,  reserved  for  the  present,  consideration  and  decision  of  the 
«piestiojis  of  duties  on  the  cargo  which  the  vessel  may  bring." 

Mr  Hay,  Acting  Sec.  of  State,  to  Mr.  Yung  Wing,  Ang.  i:i,  1880.     MSS.  Notes, 
Cbina ;  ibid. 

"  Keferring  to  j'our  note  of  the  9th  instant  relative  to  the  expected 
arrival  ot  the  Chinese  steamer  Wo  Chung  at  the  port  of  San  Francisco, 
and  to  my  repl^'  thereto  of  the  13th,  1  have  now  the  honor  to  inform  you 
that  the  reserved  question  of  the  customs  duties  of  importation  charge- 
able upon  the  cargo  which  the  vessel  may  bring  has  received  careful 
consideration. 

"Like  the  question  of  alien  tonnage  dues,  of  which  my  former  note 
treated,  the  matter  of  customs  duties  on  cargo  entering  the  ports  of 
the  United  States  from  foreign  i)orts  is  one  to  be  exclusively  decided, 
in  the  absence  of  specific  and  reciprocal  exemption  by  treaty,  accord- 
ing to  the  domestic  legislation  of  the  country. 

"The  existing  treaties  of  commerce  between  the  United  States  and 
China  do  not  provide  for  such  reciprocal  exemption,  but  stipulate  solely 
'  that  citizens  of  the  United  States  shall  never  pay  higher  duties'  [on 
merchandise  entering  China]  '  than  those  paid  by  the  most  favored 
nations.'  The  question  is,  therefore,  remitted  to  the  domestic  legisla- 
tion of  the  United  States.  That  legislation  prescribes,  in  section  2502 
of  the  Revised  Statutes,  a  discriminating  duty  of  ten  per  centum  ad 
valorem  in  addition  to  the  regular  duties  imposed  by  law  on  goods  im- 
ported in  vessels  not  of  the  United  States ;  but  it  also  provides  that 
this  discriminating  duty  shall  not  apply  to  merchandise  imported  in 
alien  vessels,  which  are  entitled  by  treaty  or  any  act  of  Congress  to 
enter  the  United  States  on  the  same  footing  as  though  imported  in 
vessels  of  the  United  States, 

"An  act  of  Congress  applicable  to  the  case  in  point,  is  found  em- 
bodied in  section  422S  of  the  lievised  Statutes,  which  empowers  the 
President,  upon  satisfactory  proof  being  given  by  the  Government  of 
any  foreign  nation  that  no  discriminating  duties  of  tonnage  or  import 
are  there  levied  upon  United  States  vessels,  or  upon  merchandise  car- 
ried thither  in  American  bottoms,  to  issue  a  proclamation  suspending 
and  discontinuing  the  discriminating  duties  aforesaid  with  respect  to 
8G 


cnw.  VI.]  cttixA.  [§  144. 

the  vessels  and  cargoes  coming  to  the  United  States  under  tbe  Hag  of 
such  foreign  nation. 

"In  order,  however,  that  the  discretionary  authority  conferred  by 
this  enactment  should  be  applied  in  conformity  with  its  entire  spirit  as 
well  as  its  letter,  it  becomes  necessary  that  the  satisfactory  proof  it 
contemplates  shall  cover  not  merely  American  imports  into  China,  but 
the  flag  under  which  they  enter  the  Empire,  on  which  point  the  treaty 
is  silent. 

"  It  is  found  practicable,  in  this  view  of  the  question,  to  join  the 
question  of  tonnage  dues,  treated  of  in  ray  former  note,  to  the  ques- 
tion of  customs  duties  now  under  consideration  between  us,  inasmuch 
as  both  matters  are  within  the  competency  of  the  President  under  the 
above-mentioned  section  4228  of  the  statutes. 

"I  have,  therefore,  the  honor  to  inquire  whether  you  are  prepared  to 
support  the  request  contained  in  your  note  of  the  9th  instant,  for  the 
accordance  of  the  most  favored  nation  treatment  to  the  Wo  Chung, 
and  consequently  to  Chinese  vessels  in  general  which  may  enter  our 
ports  with  cargo,  by  giving,  on  behalf  of  your  Government,  satisfac- 
tory proof  on  the  following  points: 

"  First.  Are  any  other  or  higher  tonnage  dues  exacted  in  the  open 
ports  of  China,  from  vessels  of  the  United  States  resorting  thereto, 
than  are  paid  by  Chinese  vessels  or  any  foreign  vessel  engaged  in  like 
trade  therewith  ? 

"Second.  Are  any  other  or  higher  customs  duties  of  impost  exacted 
in  China  from  American  citizens  importing  merchandise  thither  than 
are  paid  by  Chinese  subjects,  or  the  citizens  of  the  most  favored  power, 
importing  the  like  merchandise  into  China? 

"Third.  Is  there  any  discriminating  or  additional  customs  duty  im 
posed  upon  merchandise,  whether  of  American  or  foreign  origin,  enter- 
ing the  open  ports  of  China  in  vessels  of  the  United  States,  which  is 
not  imposed  upon  the  like  goods  entering  those  ports  in  Chinese  ves- 
sels, or  in  the  vessels  of  any  foreign  power  ? 

"I  have  thus  presented  my  inquiries  in  categorical  form,  in  view  of 
the  circumstance  that  the  most  favored  nation  treatment  which  is 
sought  by  your  note  of  the  9th,  for  the  Wo  Chung  and  her  cargo,  is 
identical  with  that  which  a  vessel  of  the  United  States  and  her  cargo 
receive  on  entering  the  ports  of  the  United  States.  I  have  also,  as 
you  will  perceive,  limited  my  inquiries  to  the  open  ports  of  China,  be- 
cause a  Chinese  vessel  coming  from  or  trading  with  a  port  of  the  Em- 
pire closed  to  the  commerce  of  non-Chinese  vessels  would  necessarily 
liave  no  claim  to  exemption  or  favor  based  upon  reciprocity  of  treat- 
ment. 

"Upon  the  receipt  of  your  reply  to  the  foregoing  inquiries,  the  De 
partment  will  be  in  a  position  to  decide  whetlier  and  to  what  extent 
the  case  of  the  Wo  Chung  and  vessels  of  her  class  come  within  the 
discretionary  power  of  the  Presidential  proclamation  contemplated  in 

87 


§144]  TRrATiES.  [chap.  VI. 

section  4i2li8  of  tlio  Kovisod  Statutes,  botli  ns  to  toniinge  and  customs 
duties. 

Mr.  ILiy,  Acting,'  Soc.  of  Stalo,  to   Clion  I,:>ii  Piii,  Aug.  23,  1S80.     MSS.  Notes, 
China;  For.  Rol..  1880. 

''On  the  2Sth  of  June,  1SS2,  tbe,  charge  d'affaires  ad  interim  of  your 
legation,  ^Ir.  Tsu  Chan  Pan<?,  wrote  to  nie  touching  the  question  arising 
under  the  act  of  May  C,  1S82,  relative  to  the  transit  across  the  territory 
of  the  United  States  of  Chinese  laborers  proceeding  to  or  returning  from 
Cuba  and  other  foreign  countries. 

"  I  am  happy  to  inform  you  that  this  Government  has  reached  the 
conclusion  that  the  transit  through  the  United  States  of  Chinese  sub- 
jects, proceeding-  to  or  from  a  third  country,  is  permissible  under  the 
act  in  question,  with  certain  precautions  against  abuses. 

"An  oi)iniou  which  I  have  received  from  the  Attorney-General  sets 
forth  the  grounds  on  which  this  conclusion  is  reached,  which,  briefly 
recapitulated,  are  as  follows: 

"  The  preamble  of  the  act  itself  reads: 

"'Whereas,  in  the  opinion  of  the  Government  of  the  United  States 
the  coming"  of  Chinese  laborers  to  this  country  endangers  the  good 
order  of  certain  localities  within  the  territory  thereof;  [and  it  is  there- 
ui)ou  enacted  that]  the  coming  of  Chinese  laborers  to  the  United  States 
be  *  *  *  suspended ;  ancl  during  such  suspension  it  shall  not  be 
lawful  for  any  Chinese  laborer  to  come,  or  having  so  come,  *  *  * 
to  remain  within  the  United  States.' 

"  The  act  is  based  upon  the  treaty  of  ISJ'ovember  17, 1880,  the  provis- 
ions whereof  it  is  designated  to  execute.  In  that  treaty  it  is  premised 
that  'a  modification  of  existing  treaties'  has  become  necessary  in  con- 
sequence of  the  increasing  Immigration  of  Chinese  laborers  and  the  em- 
barrassments caused  by  such  immigration  ;  and  thereupon  the  Govern- 
ment of  China  agrees  that  whenever  in  the  opinion  of  this  Government 
injurious  effects  are  threatened  or  caused  by  '  the  coming  of  Chinese 
laborers  to  the  United  States  or  their  residence  therein,'  such  coming 
or  residence  may  be  regulated,  limited,  or  suspended,  but  may  not  be 
absolutely  prohibited.    The  treaty  adds : 

"'The  limitation  or  suspension  shall  be  reasonable,  and  shall  apply 
only  to  Chinese  who  may  go  to  the  United  States  as  laborers,  other 
classes  not  being  included  in  the  limitations.  Legislation  taken  in  re- 
gard to  Chinese  laborers  will  be  of  such  a  character  only  as  is  necessary 
to  enforce  the  regulation,  limitation,  or  suspension  of  immigration,  and 
immigrants  shall  not  be  subject  to  personal  maltreatment  or  abuse.' 

"  In  the  view  of  the  Attorney-General,  the  act  of  May  0,  1882,  being 
intended  to  carry  into  effect  the  stipulations  of  the  treaty,  is  to  be  con- 
strued in  the  light  thereof,  and  has  reference  only  to  the  Chinese  who 
come  here  to  stay  as  laborers.  It  is  only  with  immigrants  and  with 
those  who  come  as  laborers  that  the  treaty  and  the  statute  deal.  Look- 
ing, therefore,  at  the  mischief  and  the  remedy,  and  to  the  treaty  and 
act  taken  together,  this  Government,  adopting  the  conclusion  of  the 
83 


CHAP.  VI.]  CTTTNA.  [§  144. 

Attoruey-General,  docs  '  not  think  that  a  Chinese  laborer  coming  to 
this  country  merely  to  pass  through  it  can  be  considered  as  within  the 
prohibition  of  the  law,  he  being  neither  an  immigrant  nor  a  laborer 
coming  here  as  laborer.' 

"With  regard  to  the  necessity  of  Chinese  laborers  in  transit  being 
provided  with  evidence  that  they  are  not  Chinese  coming  here  as  immi- 
grants or  as  laborers,  the  Attorney-General  says : 

"'As  the  prohibition  of  the  act  applies  to  Chinese  laborers  coming 
into  the  country  to  stay  as  laborers,  and  as  the  regulations  touching- 
certificates  of  identification  prescribed  by  the  fourth  and  sixth  sections 
are  ancillary  to  that  end,  and  intended  to  prevent  frauds  upon  the  act, 
and  therefore  applicable  to  Chinese  coming  here  for  permanent  or  tem- 
porary residence,  I  am  of  opinion  that  Chinese  passing  through  this  coun- 
try to  other  countries  are  not  required,  before  crossing  our  borders,  to 
produce  the  specified  certificates  of  identification,  provided  they  com- 
petently prove  in  some  other  manner  their  status  as  mere  transient 
passengers ;  of  course  the  certificate  would  dispense  with  other  proof. 
The  character  of  such  i^roof  may  very  properly  be  regulated  by  the 
Secretary  of  the  Treasury.' 

"  I  have  brought  the  matter,  in  this  shape,  to  the  attention  of  the 
Secretary  of  the  Treasury,  and  requested  that  he  will  frame  such  regu- 
lations as  may  be  necessary  to  permit  the  transit  of  Chinese  laborers. 
As  soon  as  the  action  of  my  colleague  shall  be  made  known  to  me,  I 
will  communicate  it  to  you." 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Cheng  Tsao  Ju,  Jan.  6,  1883.     MSS. 

Notes,  China;  For. Eel.,  18S3. 
As  to  Chinese  immigration  to  the  United  States,  see  supra,  §  97. 

"  Referring  to  my  note  to  you  of  the  6th  ultimo,  in  relation  to  the 
transit  of  Chinese  laborers  through  the  territory  of  the  United  States, 
when  passing  to  or  from  a  third  country,  I  have  now  the  honor  to  trans- 
mit, for  your  information,  four  copies  of  a  recent  circular  issued  by  the 
Secretary  of  the  Treasury,  in  which  are  set  forth  the  conditions  under 
which  such  transit  may  be  accomplished." 
Same  to  same,  Feb.  2,  1883 ;  ibid. 

"  Transit  of  Chinese  laborers  over  the  territory  of  the  United  States  in 
the  course  of  a  journey  to  or  from  other  countries. 

"  Treasury  Department, 

"  Washington,  January  23,  1883. 

"To  Collectors  of  Customs  and  others: 

"The  Attorney-General,  in  an  opinion  of  December  26, 1882,  addressed 
to  the  Secretary  of  State,  has  decided  that  Chinese  laborers,  in  transit 
merely  across  the  territory  of  the  United  States  in  the  course  of  tlieir 
journey  to  or  from  other  countries,  are  neither  emigrants  nor  'Cliiuese 
coming  to  the  United  States  as  laborers,'  within  the  hinguage  of  tlie 
treaty  of  November  17,  1880,  or  the  act  of  May  6,  1882,  and  further, 

89 


§  144.]  TREATii:s.  [cnAP.  vt. 

that  it  is  not  iiicniiibciit  upon  snoli  ]iassonp:or.s  to  ]>ro(liiro  (lie  certiii- 
catt'S  of  idcntilii-ation  ])roscrib('(l  by  sections  4  and  0  ol'  that  a(,'t,  i)ro- 
vidod  tliat,  by  cotnpeti'nt  ])roof,  they  may  othorwiso  estublish  tlioir 
transient  status. 

"The  Department  of  State  has  transmitted  the  o])inion  of  the  At- 
torney-General to  this  Department  with  its  ai)|)robation.  Treasury 
decision  iS'o.  51513,  dated  July  20,  1882,  is  therefore  revoked,  and  the 
following]:  regulations  are  adopted  by  this  Department  to  carry  ijito 
elTect  the  more  recent  opinion  of  the  Attorney  General  and  the  views 
of  the  Dej)artment  of  State  : 

"'1.  Where  a  Chinese  consul  resides  at  the  i)ort  of  landing' or  en- 
trance into  the  United  States  of  any  Cliinese  laborer  claiming-  to  be 
merely  in  transit  through  the  territory  of  the  United  States,  in  the 
course  of  a  Journey  to  or  from  other  countries,  the  certiticate  of  such 
Gliinese  consul,  identifyinj;-  tlie  bearer  by  name,  heijjht,  a<2:e,  &c.,  so  far 
as  i)ra(;ticable,  and  showinji'  the  ))lace  and  date  of  his  ariival,  thei)lace 
at  which  he  is  to  leave  the  United  States,  the  date  when  his  jouiney  is 
to  begin,  and  that  it  is  to  be  (;ontinu()us  and  direct,  shall  be  accepted 
i\s prima  /Wcie  evidence.  And  such  certiticate  shall  be  required  in  all 
cases  where  a  Chinese  consul  resides  at  such  port. 

'"2.  In  the  absence  of  such  certificate,  other  competent  evidence  to 
show  the  identity  of  the  i)erson  and  the  fact  thata  bona  Jul e  transitonly 
is  intended,  may  be  received.  The  ])roduction  of  a  through  ticket  across 
the  whole  territory  of  the  United  States  intended  to  be  traversed  may 
be  received  as  competent  i)roof,  and  should  be  exhibited  to  the  collector 
and  veritied  by  him.  Such  tickets  and  all  other  evidence  i)resented 
must  be  so  stamped  or  marked  and  dated  by  tlio  customs  ofllicer  as  to 
])revent  their  use  a  secoud  time. 

"'3.  In  the  case  of  numbers  of  Chinese  being  transported  in  a  body 
under  the  charge  of  agents  or  others,  the  affidavits  of  such  agents  or 
others  in  charge,  with  i)roof  satisfactory  to  the  collector  that  such 
laborers  will  be  conveyed  without  delay  across  the  territory  of  the 
United  States  and  delivered  on  board  ship  or  into  foreign  territorj', 
may  be  received  in  lieu  of  the  tickets  required  in  the  foregoing  regula- 
tion. 

"'Descrij^tive  lists  of  all  such  Chinese  will  be  i)repared  in  duplicate 
and  ])resented  to  the  collector  of  customs,  substantially  in  the  form 
mentioned  in  the  circular  of  May  19, 1882  (Synopsis  5231),  and  showing, 
in  addition,  the  ]ilace  and  date  ot  arrival  and  the  i>lace  and  <late  of  in- 
tended departure,  and,  when  practicable,  the  route  to  be  traveled.  One 
coi)y  will  be  retained  on  the  tiles  of  his  oftice,  and  one  to  be  forwarded 
by  mail  to  the  collector  of  customs  at  the  ])ort  of  exit,  who  will  take 
l)ains  to  see  that  the  ])assengeis  duly  leave  tlie  United  States.  If  they 
do  not,  he  Avill  report  the  fact  to  this  De])artment.  One  list  may  be 
made  to  include  all  Chinese  transported  at  one  time,  and  each  list 
should  be  properly  dated,  signed,  and  sealed  by  the  collector  or  his 
deputy. 

'"Where  considerable  numbers  of  Chinese  intend  to  travel  from  the 
port  of  entrance  to  the  i)ort  of  exit  under  the  charge  of  an  agent,  as  before 
mentioned,  it  will  be  suflicicnt  to  have  included  in  the  descriptive  list 
to  be  mailed  to  the  collector  at  the  port  of  exit  the  number  of  persons 
who  are  to  go  forward,  the  name  of  the  agent  in  charge,  and  the  route 
bv  which  thev  are  to  travel.' 

"CnAS.  J.  FOLGER, 

^^  iSccretary." 

90 


CHAP.  VI.]  CHINA.  [§  144. 

"Keferring-  to  your  note  of  the  5tli  instant,  concerning  tLe  operation 
of  Eule  3  of  Circular  oS'o.  5  issued  by  the  Treasury  Department  January 
23,  1883,  governing  the  '  transit  of  Chinese  laborers  over  the  terri- 
tory of  the  United  States  in  the  course  of  a  journey  to  or  from  other 
countries,'  I  have  now  the  honor  to  apprise  you  of  the  receipt  of  a  letter 
of  the  IGth  instant  from  the  Acting  Secretary  of  the  Treasury  on  the 
subject. 

"  Concerning  your  intimation  that  such  rule  should  discriminate  be- 
tween those  persons  who  may  be  prosecuting  their  journey  voluntarily 
and  those  who  may  be  vouched  for  by  the  agent  of  the  transportation 
company  over  whose  lines  they  may  travel,  and  Chinese  laborers  who 
come  to  this  country  in. large  bodies  from  China,  under  contract,  Mr. 
French  expresses  the  opinion  that  the  Treasury  Department  could  not 
inquire  into  the  character  of  the  persons  who  may  be  affected  by  that 
circular,  but  holds  that  if  they  are  laborers  in  transit  over  the  territory 
of  the  United  States  and  in  charge  of  any  agent,  they  come  within  the 
rule  specified.' 

Mr,  Frelinghuyseu,  Sec.  of  State,  to  Mr.  Cheng  Tsao  Ju,  Feb.  23,  1883 ;  ibid. 
See  supra,  $  67. 

"  Under  the  treaty  of  November  17,  ISSO,  between  the  United  Staies 
and  China,  restricting  the  immigration  of  Chinese  laborers  into  the 
United  States,  this  Government  is  bound  to  interpose  no  obstacle  to  the 
free  movement  of  Chinese  of  the  excepted  non-laboring  classes  who 
may  come  to  this  country. 

"United  States  consular  officers  are  bound  bj-  that  treaty  to  issue 
certificates  to  Chinese  subjects  not  laborers,  going  to  the  United  States 
from  places  where  there  may  be  no  competent  Chinese  representative. 
It  is  advisable  that  there  should  be  a  fixed  form  for  these  certificates  so 
that  they  may  conform  with  law  and  treaty. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Manning,  Aug.  11,  1885.     MSS.  Dora.  Let. 
See  exipra,  $  G7. 

"  As  regards  the  conflict  between  the  treaty  of  1858  and  that  of  1880, 
there  can  be  no  qucstiou  that  the  latter,  being  more  recent,  is  to  pre- 
vail. If  there  be  a  question  between  either  treaty  and  subsequent 
Chinese  legislation,  the  Department's  ojnnion  is  that,  inlernationally, 
such  legislation  cannot  affect  treaty  obligations.  I  therefore  affirm 
your  suggestion  that  'in  cases  in  which  an  American  is  sued  by  a  Chinese 
subject,  the  United  States  consul  shall  invite  the  ])roper  offu^ial  of  the 
plaintiff's  nationality'  to  sit  with  him  at  the  hearing,  to  watch  the  pro- 
ceedings, to  present  and  examine  and  cross-examine  witnesses,  and  to 
I»rotest,  if  he  pleases,  in  detail.'  " 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Dcnby,  Dec.  12,  188.5.    MSS.  Inst..  China. 

"I  have  received  your  letter  of  tlie  IGth  instant  relative  to  the  Chi- 
nese. 

91 


§  144.]  TREATIES.  [CIIAP.  VI. 

"1.  As  to  naturalization,  the  only  treaty  provision  in  the  matter  is 
tbe  last  clause  of  article  C  of  the  Burling^nme  treaty,  signed  July  28, 
1SG8,  a  copy  of  which,  with  the  passaf;e  referred  to  marked,  is  herewith 
transmitted.  The  pertinent  statutory  provision  is  found  in  section  14 
of  the  existing  Chinese  immigration  act  of  May  G,  1882,  as  follows : 

"  '  Sec.  14.  That  hereafter  no  State  court  or  court  of  the  United  States 
shall  admit  Chinese  to  citizenship;  and  all  laws  in  conflict  with  this  act 
are  herebj'  repealed.' 

"  2.  As  to  return,  the  same  act  of  May  0,  1882,  and  the  later  act  of 
July  5,  1884,  amendatory  thereof,  prescribe  the  conditions  under  which 
Chinese  may  leave  the  United  States  and  return  hither.  Copies  of 
these  two  acts  are  also  transmitted. 

"  Tour  third  question  reads  as  follows : 

"  '  Can  a  father,  a  respectable  resident  of  this  city  [New  Orleans],  of 
Chinese  birth,  have  his  young  son  brought  to  him  from  China?' 

"This  would  appear  to  depend  on  whether  the  father  belongs  to  the 
class  exempted  by  the  treaty.  If  the  father  be  a  laborer,  it  would  prob- 
ably be  held  that  his  privilege  of  residence  and  power  to  go  and  come 
is  personal  only  to  himself,  and  cannot  extend  to  members  of  his  house- 
hold. But  this  Department  cannot  decide  such  questions.  The  execu- 
tion of  the  provisions  of  the  acts  of  Congress  mentioned  is  intrusted  to 
the  Secretary  of  the  Treasury,  to  whom  the  inquiry  may  be  addressed 
to  enable  an  opinion  to  be  given  on  them  of  the  particular  case,  and 
not  as  a  hypothetical  inquiry." 

Mr.  Bayard,  Sec.  of  State,  to  Miss  Saunders,  Mar.  23,  1886.     MSS.  Dora.  Let. 
As  to  naturalization,  see  infra,  ^§  1~1,  JT- 

"  The  prohibition  of  Article  II  of  the  treaty  of  1880  not  only  covers  the 
importation,  transportation,  purchase,  or  sale  of  oi)ium  by  American  citi- 
zens in  China,  but  extends  also  to  vessels  owned  by  such  citizens,  whether 
employed  by  themselves  or  by  others  in  the  opium  trade.  Logically,  a 
building  owned  by  an  American  citizen  and  used  by  another  person  for 
the  storage  of  opium,  would  come  within  the  extended  prohibition. 
But  there  may  be  room  to  question  whether,  as  the  treaty  stands,  the 
ju'ohibition  as  to  an  American  owned  vessel  employed  by  'other  persons' 
in  the  opium  trade  is  not  strictly  limited  to  cases  where  such  '  other 
persons'  are  agents  or  factors  of  the  American  owner,  or  where  the 
owner  is  privy  to  the  unlawful  use  to  which  his  property  is  to  be  put. 
The  intent,  however,  is  clear  that  no  American  citizen  in  China  shall 
engage  in  or  knowingly  aid  others  to  carry  on  the  opium  traffic. 

"  The  provision  of  the  treaty  is  not  self-executing.  The  enforcement 
of  the  prohibition,  as  to  American  citizens  in  China,  is  expressly  de- 
pendent upon  '  appropriate  legislation'  on  the  part  of  the  United  States. 
It  is  only  such  legislation  that  consuls  of  the  United  States  in  China 
can  enforce  judicially.     In  the  absence  of  such  legislation,  it  is,  to  say 

92 


CITAP.    VI.]  CHINA.  §  144. 

the  least,  doubtful  whether  a  cousul  could  lawfully  interfere  to  prevent 
an  American  citizen  from  doing  an  act  not  in  itself  contrary  to  inter- 
national law  or  the  domestic  law  of  China. 

"  If,  however,  the  contemplated  employment  of  the  American  owned 
premises  by  a  British  subject  be  opposed  by  China,  and  the  lease  sought 
to  be  jjrevented  by  the  authorities  of  the  latter,  the  consul  would  be 
justified  in  withholding  his  approval  from  the  sub-lease. 

"  Or,  to  state  the  case  briefly  in  another  form  : 

"  While  the  Dei>artment  regards  it  as  perhaps  somewhat  doubtful 
whether  the  treaty  of  1880  precludes  such  a  sub-lease  as  the  one  pro- 
posed, and  finds  itself  rather  unwilling  to  differ  from  your  conclusions 
on  this  point,  since,  being  on  the  spot,  you  can  best  judge  of  the  true 
condition  of  affairs,  yet  there  certainly  appears  little  room  to  doubt  that 
if  the  treaty  as  to  opium  is  de2)endent  on  '  appropriate  legislation,'  it  can- 
not become  effective  in  the  absence  of  such  legislative  action ;  and  no 
legislation  has  yet  been  adopted  to  execute  the  opium  clause  of  the 
treaty  of  IS'riO,  so  far  as  this  Government  is  concerned." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Denby,  May  li,  1866.     MSS.  lust.,  Chiua. 

See  further  as  to  treaty  with  China,  supra,  §  67 ;  as  to  consular  courts 
in  China,  supra,  §  125. 

Papers  showing  the  importance  of  a  commercial  treaty  with  China, 
and  a  naval  force  to  be  there  placed,  will  be  found  in  House  Doc.  40, 
2Glh  Cong.,  1st  sess.  An  elaborate  report  made  by  the  Secretary  of 
State  on  February  25,  1840,  on  United  States  trade  with  China,  will  be 
found  in  House  Ex.  Doc.  119.  26th  Cong.,  1st  sess.  For  claims  against 
China  see  House  Ex.  Doc.  12,  40th  Cong.,  3d  sess. 

Tbe  report  of  a  special  committee  (Mr.  Sargent,  chairman),  February 
27,  1877,  on  Chinese  immigration,  is  given  in  Senate  Report  689,  44th 
Cong.,  2d  sess. 

For  construction  of  treaties  of  1844,  1858, 1868,  and  ]880,  in  reference 
to  the  rights  of  Chinese  in  the  United  States,  see  Mr.  Bayard's  note  to 
Cheng  Tsao  Ju,  February  15,  1886,  House  Ex.  Doc.  102,  49th  Cong.,  1st 
sess.,  supra,  §  67, 

The  act  of  1848  (9  Stat.,  276,  act  1860,  substituted  Rev.  Stat.,  §  4083),  to 
carry  into  effect  certain  provisions  of  the  treaties  between  the  United 
States  and  China,  not  having  designated  any  particular  place  for  the 
confinement  of  prisoners  arrested  for  crime,  the  same  is  left  for  regula- 
tion under  section  5,  or  in  the  absence  of  regulation,  to  the  discretion 
of  the  acting  officer. 

t)  Op.,  07,  Touccy,  1849.     See  siqira,  $  125. 

By  the  treaty  with  China  of  1844,  Articles  XXI  and  XXV,  all  citi- 
zens of  tlie  United  States  in  China  enjo}'  complete  rights  of  extra- 
territoriality, and  are  amenable  to  no  authority  but  that  of  the  United 
States. 

7  On.,  403,  Cushing,  16r)5. 

03 


§  144.]  TKEATIES.  [CHAr.  VI. 

The  judicial  authority  of  the  United  States  commissiouer  to  China  is 
restricted  to  the  hve  ports  mentioned  in  the  treaty  with  that  nation  of 
1858. 

9  Op.,  1,"J4,  Black,  1659. 

Questions  concerning  intervention  in  China  are  discussed  supra,  §  G7. 

<'On  the  3d  of  ^Sfaieh,  I8i;3,  an  act  was  ai)proved  iHacing  forty  tliou- 
sand  dolhirs  'at  the  disposal  of  the  President  of  the  United  States  to 
enable  him  to  establish  tlie  future  commercial  relations  between  the 
United  States  and  the  Chinese  Empire  on  terms  of  national  e(iual  reci 
l)rocity,'  and  on  the  8th  of  the  lollowinp-  ^lay,  Caleb  Cushing  '.vas  com- 
missioned as  envoy  extraordinary,  minister  plenipotentiary,  and  com- 
missioner to  China. 

"  He  says  of  his  mission  there :  '  I  entered  China  with  the  formed 
general  conviction  that  the  United  States  ought  not  to  concede  to  any 
foreign  state  under  any  circumstances  jurisdiction  over  the  life  and 
liberty  of  a  citizen  of  the  United  States,  unless  that  foreign  state  be  of 
our  own  family  of  nations — in  a  word,  a  Christian  state.  *  *  *  In 
Chiiui  I  found  that  Great  Britain  had  stipulated  for  the  absolute  ex- 
emi)tiou  of  her  subjects  from  the  jurisdiction  of  the  Empire.  *  *  * 
I  deemed  it,  therefore,  my  duty  to  assert  a  similar  exemption  on  behalf 
of  citizens  of  the  United  States.'  A  treaty  on  this  basis  was  concluded 
on  the  3d  day  of  July,  1844,  and  was  communicated  to  the  Senate  by 
the  President  on  the  22d  of  January,  1845;  and  on  the  28th  of  Janu- 
ary the  injunction  of  secrecy  was  removed  from  the  correspondeuce 
submitted  with  the  treaty. 

"On  the  exchange  of  the  ratifications  of  this  treaty,  it  became  neces- 
sary that  laws  should  be  enacted  conferring  judi(;ial  powers  on  ministers 
and  consuls,  in  order  that  citizens  of  the  United  States  in  China  might 
enjoy  the  protection  and  rights  conferred  by  the  treaty.  Congress  ])ro- 
ceedcd  in  this  matter  with  such  good  judgment  that  all  conflicting 
views  were  harmonized  in  committee,  and  the  act  was  })assed  without 
discuvssion,  and  was  approved  on  the  11th  of  August,  1848. 

"  Under  this  act  it  was  originally  held  that  vice-consuls  could  not  be 
empowered  to  exercise  judicial  functions;  but  this  decision  was  reversed 
by  Attorney-General  Cushing. 

"  The  act  of  1848  emjjowered  the  commissioner,  with  the  advice  of 
the  several  consuls,  to  make  regulations  for  carrying  the  provisions  of 
the  treaty  into  elfect. 

"  In  November,  1854,  Pobert  McLane,  as  commissioner,  made  several 
'regulations,' which  were  duly  transmitted  to  Congress  by  the  Presi- 
dent on  the  15th  of  July,  1850. 

"On  the  12th  of  December,  1850,  regulations  made  by  Peter  Parker, 
a  successor  of  McLane,  were  also  transmitted  to  Congress. 

"William  B.  Peed  was  appointed  commissioner  on  the  18th  of  April, 
1857.  Uis  instructions,  which  were  communicated  to  the  Senate  by  the 
President  on  the  20th  of  April,  1858,  directed  him,  by  peaceful  co- 
operation, to  aid  in  the  accomplishment  of  the  objects  which  the  allies 
were  seeking  'to  accomplish  by  treaty  stijjulations.' 

"On  the  10th  of  December,  1857,  the  President  transmitted  to  Con- 
gress further  regulations  made  l)y  Parker  on  the  4th  of  March,  1857,  for 
such  revision  as  Congress  might  deem  expedient.  The  Senate  com- 
mittee reported  that  these  regulations  needed  no  revision,  and  the 
Senate  passed  a  resolution  to  that  effect. 

94 


ciiAr.  VI.]  CHINA.  [§  144. 

"  On  the  20tli  of  December,  1858,  the  President  transmitted  to  the 
Senate  the  correspondence  of  Commissioners  McLane  and  Parker,  but 
witbbeld  tbe  instructions  of  tbe  Department  to  tbem.  This  document 
contains  1424  pages,  and  exhibits  in  detail  the  questions  which  had 
arisen  with  China  during  the  period  it  covers. 

"  On  the  27th  of  December,  1858,  the  President  transmitted  to  Con- 
gress a  decree,  and  a  further  regulation  which  had  been  made  by  Eeed, 
who  had  been  a])pointed  minister  plenipotentiary. 

'••  The  iustructious  of  the  Department  of  State  to  McLane  and  Parker, 
which  were  withheld  from  the  public  in  1858,  were  communicated  to  the 
Senate  in  1800.  With  the  instructions  to  Parker  the  President  also 
transmitted  to  Congress  a  mass  of  correspondence  (G24  printed  pages) 
relating  largely  to  the  negotiations  of  the  treaty  of  Tieu-tsin  in  1858. 
In  1857,  Mr.  Marcy  thought  that  the  'British  Government  evidently 
had  objects  beyond  those  contemplated  by  the  United  States,  and  we 
ought  not  to  be  drawn  along  with  it,  however  anxious  it  may  be  for  our 
co-operation.'  He  writes  to  Parker  on  the  27tli  of  February,  1857 : 
'The  President  does  not  believe  that  our  relations  with  China  warrnnt 
the  "  last  resort "  you  speak  of.  *  *  *  The  ''  last  resort "  means  war.' 
But  in  the  following  May,  Mr.  Cass,  the  Secretary  of  State,  directs 
Eeed  to  co-operate  peacefully  with  the  allied  powers  for  the  objects 
named  in  his  dispatch. 

*  It  being  proposed  in  Congress  to  change  or  modify  the  act  of  1848, 
Mr.  Cass  addressed  a  communication  on  the  subject  to  the  chairman  of 
the  Senate  Committee  of  Foreign  Kelations.  Congress  passed  the  act 
June  22,  18G0. 

"  Mr.  Burlingame,  in  June,  18G3,  being  the  representative  of  the 
United  States  in  China,  wrote  to  Mr.  Seward  :  '  In  my  dispatch  ]Slo.  18, 
of  June  2,  1862,  I  had  the  honor  to  write,  if  the  treaty  i)owers  could 
agree  among  themselves  to  the  neutrality  of  China,  and  together  secure 
order  in  the  treaty  ports,  and  give  their  moral  support  to  that  party  in 
China  in  favor  of  order,  the  interests  of  humanity  would  be  subserved. 
Upon  my  arrival  at  Peking  I  at  once  elaborated  my  views,  and  found, 
upon  comjiaring  them  with  those  held  by  the  representatives  of  Eng- 
land and  llussia,  that  they  were  in  accord  with  theirs.' 

"  On  the  15th  of  June,  1864,  Burlingame  instructed  the  consul-general 
at  Shanghai  respecting  '  the  extent  of  the  rights  and  duties  of  Ameri- 
can citizens  under  the  treaty,  and  the  regulations  made  iu  pursuance 
thereof;'  and  he  added,  'I  have  submitted  the  above  letter  to  the 
British,  French,  and  I'ussian  ministers,  and  they  authorize  me  to  inform 
you  they  entirely  approve  its  views  and  policy.'  Burlingame  described 
the  policy  he  was  prescribing  as  '  an  eftbrt  to  substitute  fair  diplomatic 
action  in  China  for  foice.'  When  this  important  action  was  communi- 
cated to  Mr.  Seward,  Secretary  of  State,  he  wrote,  '  It  is  approved  with 
much  commendation.' 

"On  the  Oth  of  November,  1664,  Burlingame  trjinsmitted  to  the  De- 
partment further  rules  and  regulations  for  consular  courts.  Seward 
replied  that  the  dispatch  would  '  be  submitted  to  Congress.' 

•'  In  1866  Burlingame  submitted  for  approval  'land  regulations'  for 
the  regulation  and  the  government  of  the  European  colony  (the  French 
excepted)  at  Shanghai.  In  1868  thei)owers  agreed  upon  rules  for  joint 
investigation,  under  the  treaty,  in  cases  of  confiscation  and  fine  by  the 
custom  house  authorities. 

"In  the  summer  of  1868  a  legation  from  China  arrived  at  Washington, 
with  Burlingame  (who  had  left  the  service  of  the  United  States)  as  its 

U5 


§  144. J  TREATIES.  [CUAP.  VI. 

chief.  The  treaty  of  186S  was  theu  concluded  betweeu  them  and  the 
Uuited  States. 

"There  beiu^  some  dehiy  in  the  ratification  of  that  treaty  on  the  part 
of  Cliina,  Mr.  Fish  instructed  ]Mr.  Bancrolt,  the  minister  of  the  United 
States  at  Berlin  thus:   'Yon  Mill  undoubtedly  meet  ]\Ir.  Burlingame 

♦  *  *  in  Berlin.  *  »  »  Impress  upon  him  the  importance  to 
China  of  an  early  ratitication  of  the  treaties.  *  *  *  While  the  Presi- 
dent cordially  f^ives  his  adhesion  to  the  i)rinciples  of  the  treaty  of  18G8, 

*  *  *  yet  he  earnestly  hopes  that  the  advisers  of  His  Majesty  the 
Emperor  may  soon  see  the  way  clear  to  counseling  the  granting  of 
some  concessions.' 

"In  1870  Congress  enacted  that  the  superior  judicial  authority  con- 
ferred by  the  act  of  18G0  on  consuls-general  or  consuls,  should  be  vested 
in  the  Secretary  of  State,  and  that  in  certain  cases  appeals  should  lie 
from  the  judgment  of  consular  courts  to  the  district  court  of  the  United 
States  for  the  district  of  California. 

"  In  an  opinion  dated  September  19, 1855,  Attorney-General  Gushing 
reviews  at  length  the  effect  of  the  statutes  of  1848,  and  the  extent  of  the 
judicial  authority  it  confers  ujmn  consuls.'  Attorney-General  Black 
held  that  it  was  limited  to  the  ports  mentioned  in  the  treaty. 

"  The  expenses  of  transporting  prisoners  held  for  trial  from  one  ])ort 
in  China  to  another  nre  a  lawful  charge  upon  the  general  ai)propria- 
tions  for  defraying  the  judicial  expenses  of  the  Government  in  the  aj)- 
sence  of  specilic  appropriations  for  the  i)urpcse. 

"  In  IsTovember,  1858,  Commissioner  Reed,  on  behalf  of  the  United 
States,  accepted  five  hundred  thousand  taels  ($735,238.97)  in  full  satis- 
fiiction  of  tlie  claims  of  citizens  of  the  United  States  against  China. 
In  the  following  March  Congress  passed  an  act  providing  for  the  cus- 
tody of  the  money,  and  authorizing  the  President  to  appoint  commis- 
sioners to  examine  and  audit  the  claims  with  a  view  to  its  distribution. 
(The  manner  in  which  this  was  done  is  set  forth  in  detail  in  House  Ex. 
Doc.  29,  3d  sess.  40th  Cong.)  After  the  payment  of  the  awards  in  full 
the  remainder  of  the  money  was  remitted  to  the  Department  of  State. 
It  has  been  the  subject  of  several  rejiorts  from  the  Secretary  of  State, 
and  of  some  discussions  in  Congress,  but  there  has  been  no  legislative 
action  respecting  it." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"  During  the  administration  of  President  Tyler,  Caleb  Gushing,  as 
ideuipotentiary,  negotiated  a  treaty  by  which  i)oliticai  relations  were  for 
the  first  time  established  between  the  United  States  and  the  Emperor 
of  China.  In  this  treaty,  the  rights  of  extraterritoriality  were  stated 
in  unmistakable  terms.  '  Citizens  of  the  United  States  who  may  com- 
mit any  crime  in  China  shall  be  subject  to  be  tried  and  punished  only 
by  the  consul  or  other  public  functionary  of  the  United  States  thereto 
authorized,  according  to  the  law  of  the  United  States.  All  questions 
in  regard  to  rights,  whether  of  property  or  person,  arising  between  citi- 
zens of  the  United  States  in  China,  shall  be  subject  to  the  jurisdiction 
and  regulated  by  the  authorities  of  their  own  Government.'" 

Ibid. 

The  administration  by  consuls  of  the  extraterritorial  jurisdiction  con- 
ferred by  treaty  is  considered,  svpra,  §  125. 

OG 


CHAJ'.  VI.]        COLOMUIA  AND  NEW  GRANADA.  [§  145. 

(7)  Colombia  amd  New  Gkanada. 
§145. 

Presid<'iit  Monroe's  message  of  Feb.  22,  1825,  giviug  eouveiition  with 
Colombia  concluded  Oct.  3,  1824,  with  the  documents  appertaining 
thereto,  is  giveli  in  House  Doc.  406,  18th  Cong.,  2d  sess.  5  Am,  St. 
Pap.  (For.  Kel.),  09G. 

The  convention  of  Oct.  28,  1826,  between  the  United  States  and  the 
Federation  of  tbe  Center  of  America,  is  given  in  6  Am.  St.  Pap.  (For 
Rel.),  209. 

For  a  bistory  of  tbe  diplomatic  relations  of  tbe  United  States  with 
tbe  Governmeutof  Colombia,  see  reportof  Mr.  Livingston,  Sec.  of  State, 
to  President  Jackson,  March  15,  1832.     MSS.  Eeport  Book. 

Distinctive  questions  as  to  tbe  isthmus  are  hereafter  discussed,  iufra, 

"Although  this  Government  has  always  maintained  that  the  three 
States  of  which  the  Republic  of  Colombia  was  composed  are  jointly 
and  severally  liable  for  the  claims  of  our  citizens  against  that  Republic, 
yet  from  consideration  for  the  condition  of  those  States  it  was  deemed 
advisable  to  reserve  tbe  application  of  this  principle  and  to  await  the  re- 
sult of  such  arrangements  as  they  might  make  among  themselves  for  the 
adjustment  of  the-e  claims.  This  was  effected  by  tbe  treaty  between 
New  Granada  and  Venezuela  of  the  23d  of  December,  1834,  which  was 
subsequently  acceded  to  by  Ecuador.  Pursuant  to  that  treaty  New 
Granada  became  responsible  for  fifty,  Venezuela  for  twenty-eight  and 
a  half,  and  Ecuador  for  twenty-one  and  a  half  per  cent,  of  the  debts  of 
tbe  Republic  of  Colombia.  Upon  this  basis  New  Granada  and  Vene- 
zuela have  both  paid  their  proportion  of  tbe  claims  in  the  cases  of  tbe 
Josephine  and  Ranger." 

Mr.   Bucliauan,  Sec.  of  State,  to  Mr.    Liviugston,  May  13,  18-lri.     MSS.  lust., 
Ecuador. 

An  historical  sketch  of  tbe  relations  of  the  United  States  with  the  fed- 
eration of  Central  America  is  given  in  instructions  of  JNIr.  Bucbanan, 
Sec.  of  State,  to  Mr.  Hise,  June  3, 1848 ;  Mr.  Clayton,  Sec.  of  State,  to 
Mr.  Squier,  May  1,  1849.     MSS.  Inst.,  Am.  St. 

"  Tbe  obligations  we  have  assumed  (by  the  guarantee  of  tbe  neutrality 
of  the  Isthmus)  give  us  a  right  to  offer,  unasked,  such  advice  to  the  New 
Granadian  Government,  in  regard  to  its  relations  with  other  i)Owers,  as 
might  tend  to  avert  from  that  Republic  a  rupture  witb  any  nation  wbich 
migbt  covet  the  Istbinus  of  Panama. 

Mr.  Clayton,  Sec.  of  Si  ate,  to  Mr.  Eoote,  July  19,  1849.     MSS.  Inst.,  Colombia. 

Tbe  United  States  will  not  assent  to  a  capitation  tax  by  tbe  New 
Granada  Government  on  citizens  of  the  United  States  cjossing  tbe 
Istlnnus. 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Foote,  Jan.  9,  18G0.     MSS.  Just.,  Colombia. 
Mr.  Marcy,  Sec.  of  State,  to  Mr.  Green,  Feb.  16,  18.'j4  ;  ibid. 

S.  Mis.  1G2— VOL.  TT 7  97 


§  145.]  TREATIES.  [CIIAP.  VI. 

Nor  will  assent  be  given  to  the  leqniivnicnt  by  New  Granada  of  transit 
passports  from  such  citizens. 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Footc,  April  1:5,  18:.0.  MSS.  lust.,  Colombia. 
See  also  Mr.  Marey  to  ^Ir.  Green,  Fel).  Ifi,  1H,'.4  ;  Mr.  Marey  to  Mr.  Bowlin, 
Aug.  31,  1855;  ibid. 

Under  the  treaty  of  1S4G  with  New  Granada  the  United  States  has 
the  right  to  send  over  the  Isthmus  of  Panama  persons  in  its  employment 
in  both  the  civil  and  the  military  service. 

Mr.  Marey,  Sec.  of  State,  to  Mr.  Paredes,  Jnne^O,  1853.  MSS.  Notes,  Colombia. 
Same  to  same  Oct.  12,  1853  ;  ibid. 

In  1820  the  Ibrmer  Eepublic  of  Colombia  was  dismembered,  and  from 
that  state  arose  the  three  licpublics  of  New  Granada,  A'enezuela,  and 
Ecuador.  By  a  treaty  between  the  first  two  of  these  states,  of  the  2.3d 
December,  1834,  New  Granada  was  made  responsible  for  50,  Venezuela 
for  28i,  and  Ecuador  for  21^  per  cent,  of  the  debts  of  the  Republic  of 
Colombia. 

Mr.  Marey,  Sec.  of  State,  to  Mr.  Green,  Feb.  3,  1854.    MSS.  Inst.,  Colombia. 

"This  state  of  insecurity  is  very  prejudicial  to  both  countries,  and  it 
is  not  doubted  that  when  properly  urged  upon  the  consideration  of  New 
Granada  that  Government  will  take  prompt  and  effectual  measures  to 
insure  to  the  citizens  of  the  United  States  the  most  ample  protection 
for  their  persons  and  property  on  the  isthmus  within  its  territory.  This 
is  not  onlj'  a  duty  of  national  obligation,  but  is  expressly  provided  for 
in  the  treaty  of  12th  of  December,  1846,  between  the  United  States  and 
New  Granada.  The  United  States  must  have  the  free,  safe,  and  unin- 
terrupted transit  for  those  citizens  and  for  public  and  private  property 
across  the  Isthmus  of  Panama  to  the  full  extent  contemplated  by  that 
treaty,  and  this  Government  looks  with  confidence  for  the  security  of 
this  right,  and  does  not  expect  that  any  necessity  will  arise  for  the  use 
of  any  other  means  for  the  secure  enjoyment  of  it  but  an  appeal  to  the 
State  of  New  Granada  to  fulfill  its  treaty  stipulations  upon  that  subject. 
The  United  States  may  reasonably  expect,  after  what  has  happened, 
that  New  Granada  will  station  such  a  force  along  the  route  of  the  rail- 
road and  at  Aspinwall  and  Panama  as  will  secure  adequate  protection 
to  the  persons  and  property  of  the  citizens  of  the  United  States." 

Mr,  Marey,  Sec.  of  State,  to  Mr.  Bowlin,  June  4,  1856.     MSS.  Inst.,  Colombia, 

The  Government  of  the  United  States  will  not  submit  to'an  exorbi- 
tant local  taxation  of  its  mail  matter  passing  over  the  isthmus  railroad. 

Mr.  Marey,  Sec.  of  State,  to  Mr.  Bowlin,  July  3,  18.56;  to  Mr.  Morse  and  Mr, 
Bowlin,  Dec,  3,  1856.  MSS,  Inst.,  Colombia.  See  also  instructions  of  Mr. 
Cass,  Sec.  of  State,  to  Mr.  Jones,  April  30,  1859;  ibid. 

On  December  o,  185G,  yir.  Marey,  Secretary  of  State,  transmitted  to 
Messrs.  Morse  ami  Uowliu,  commissioners,  a  draft  of  a  convention  with 
New  Granada,  giving  the  United  States,  or.  payment  of  a  money  equiviv 
08 


CHAP.  VI.]        COLOMBIA  AND  NEW  GRANADA.  [§  145. 

leut,  the  protectorate  of  the  Isthmus,  so  far  as  concerns  transit,  agreeing 
"to  satisfy  foreign  powers  that  it  atouIcI  be  kept  open  for  their  common 
use  on  fair  terms,"  and  that  they  should  be  asked  to  join  in  a  guarantee 
for  the  neutrality  of  that  part  of  the  Isthmus.  "The  arrangement  does 
not  propose  a  fall  cession  of  the  sovereign  rights  of  Xew  Granada  over 
the  territory  included  in  the  two  municipalities,  though  it  is,  to  a  con- 
siderable extent,  a  restriction  upon  those  rights.  This  arrangement  is 
not,  it  is  believed,  of  an  unusual  character.  In  organizing  the  General 
Government  of  the  United  States  the  several  States  reserved  to  them- 
selves a  large  portion  of  their  original  sovereign  rights."  It  was  also 
proposed  that  the  United  States  should  acquire  control  of  the  island 
of  Taboga,  and  some  other  small  islands  in  the  harbor  of  Panama.  For 
these  concessions  81,800.000  was  the  highest  sum  to  be  offered,  from 
which  were  to  be  deducted  $-400,000,  to  be  paid  citizens  of  the  United 
States  in  satisfaction  of  their  claims  on  New  Granada. 
MSS.  lust.,  Colombia. 

That  the  Government  of  Xew  Granada  declined  "to  negotiate  upon 
the  questions  at  issue,"  see  Mr.  Marcy  to  Mr.  Bowlin,  Apr.  17,  1857; 
ibid. 

The  United  States  Government  will  resist,  by  its  naval  forces  at  As- 
pinwall  and  Panama,  any  forcible  attemi)t  by  New  Granada  to  lay  a 
tonnage  tax  on  vessels  of  the  United  States  at  those  ports,  such  tax 
I)eing  in  violation  of  treaty  obligations. 

Mr,  Marcy,  Sec.  of  State,  to  Mr.  Bowlin,  Dec.  31, 1856.  MSS.  Inst.,  Colombia.  See 
instructions  of  Mr.  Cass  to  Mr.  Jones,  April  30, 1859,  ibid.,  where  the  history 
and  conditions  of  tlie  tax  in  question  are  elaborately  given,  and  where  the 
question  is  remitted  anew  to  negotiation.  This  resumption  of  negotiation 
came  from  the  agreement  of  New  Granada  to  submit,  by  the  treaty  of  Sep- 
tember 10,  1857,  all  claims  by  citizens  of  the  United  States,  to  arbitration. 

As  to  tonnage  duties  on  the  isthmu.s,  see  further  Mr.  Marcy,  Sec.  of  State,  to 
Mr.  Herran,  Dec.  12,  1556.  MSS.  Notes  Colombia.  Mr.  Cass  to  Mr.  Herrau, 
Sept.  10,  1857 ;  same  to  same,  ,Iuue  4,  1858 ;  ihid. 

A  joint  guarantee  by  the  United  States  in  common  with  other  powers 
of  the  neutrality  of  the  Isthmus  of  Panama  is  inconsistent  with  the 
policy  of  the  United  Slates. 

Mr.  Ca.ss,  Sec.  of  State,  to  Lord  Napier,  Sept.  10,  1857.    MSS.  Notes,  Gr.  Brit. 

And  so  with  a  joint  arrangement  for  the  enforcement  of  neutrality 
laws. 

Same  to  same,  Oct.  *20,  1857 ;  ihid. 

"Under  our  treaty  with  New  Granada  of  the  12th  December,  184G, 
we  are  bound  to  guaranty  the  neutrality  of  the  Isthmus  of  Panama, 
through  which  the  Panama  railroad  passes,  'as  well  as  the  rights  of 
sovereignty  and  property  which  New  Granada  has  and  possesses  over 
the  said  tciritory.'  This  obligation  is  founded  upon ecpiivaUuits granted 
by  the  treaty  to  the  government  and  people  of  the  United  States, 

00 


§  145.]  TREATIES.  [CIIAP.  VI. 

"  Under  these  ciivmiislaiu'es,  I  recomniciul  to  Cou{;ress  the  ])assn<;fo 
of  an  aet  anthoiizin^'  tlie  President,  in  ease  of  neeessity,  to  employ  tho 
land  and  naval  forces  of  the  United  States  to  carry  into  eflect  this 
{jnarantee  of  neutrality  and  protection.  I  also  recommend  similar 
legislation  for  the  security  of  any  other  route  across  the  isthmus  in 
wiiicli  we  may  acquire  an  interest  by  treaty." 

PrisiiU'iit  ]>ii(haniin,  First  Annual  Mcssago,  18r>7. 

"  A  guarantee  for  the  {general  use  and  security  of  a  transit  route,  and 
also  l\)r  its  neutrality,  is  a  desirable  measure,  which  would  meet  the 
hearty  concurrence  of  the  United  States.  These  views  have  already 
been  made  known  to  the  Governments  of  Costa  Eica  and  Nicarafjua,, 
and  they  have  been  intbrmed  'that  the  President  indulges  the  hoi)e 
that  these  routes  may  be  considered  by  general  consent  as  neutral  high- 
ways for  the  world,  not  to  be  disturbed  b^'  the  operations  of  war.' 
These  great  avenues  of  intercommunication  are  vastly  interesting  to  all 
the  commercial  powers,  and  all  may  well  join  in  securing  their  freedom 
and  use  against  those  dangers  to  which  they  are  exposed  from  aggres- 
sion or  outrages  originating  within  or  without  the  territories  through 
which  they  pass. 

"But  the  establishment  of  a  political  protectorate  by  any  of  the 
powers  of  Europe  over  any  of  the  independent  states  of  this  continent, 
or,  in  other  words,  the  introduction  of  a  scheme  of  policy  which  would 
carry  with  it  a  right  to  interfere  in  their  concerns,  is  a  measure  to  which 
the  United  States  have  long  since  avowed  their  opposition,  and  which, 
should  the  attempt  be  made,  they  will  resist  by  all  the  means  in  their 
power.  The  reasons  for  the  attitude  they  have  assumed  have  been 
fully  promulgated,  and  are  everywhere  well  known.  There  is  no  need 
upon  this  occasion  to  recapitulate  them  ;  they  are  founded  on  the  polit- 
ical circumstances  of  the  American  continent,  which  has  interests  of 
its  own,  and  ought  to  have  a  policy  of  its  own,  disconnected  from  many 
of  the  questions  which  are  continually  presenting  themselves  in  Europe 
concerning  the  balance  of  power  and  other  subjects  of  controversy  aris- 
ing out  of  the  condition  of  its  states,  and  which  often  find  their  solu- 
tion or  their  postponement  in  war.  It  is  of  paramount  importance  to 
the  states  of  this  hemisphere  that  they  should  have  no  entangling 
union  with  the  powers  of  the  Old  World,  a  connection  which  would  al- 
most necessarily  make  them  parties  to  wars  having  no  interest  for 
them,  and  which  would  often  involve  them  in  hostilities  with  the  other 
American  states,  contiguous  or  remote.  The  years  which  have  iiassed 
by  since  this  jirinciple  of  separation  was  first  announced  by  the  United 
States  have  served  still  more  to  satisfy  the  people  of  this  country  of 
its  wisdom,  and  to  fortify  their  resolution  to  maintain  it,  happen  what 
may.     *     *     * 

"The  progress  of  events  has  rendered  the  interoceanic  routes  across 
the  narrow  portions  of  Central  America  vastly  important  to  the  com- 
100 


CHAP.  VI.]        COLOMBIA  AND  NEW  GRANADA.         [§  145. 

uiercial  world,  and  especially  to  the  United  States,  whose  posses- 
sions, extending  along  the  Atlantic  and  Pacific  coast  demand  the 
speediest  and  the  easiest  modes  of  communication.  While  the  just 
rights  of  sovereignty  of  the  States  occupying  this  region  should  always 
be  respected,  we  shall  expect  that  these  rights  will  be  exercised  in  a 
spirit  befitting  the  occasion  and  the  wants  and  circumstances  that  have 
arisen.  Sovereignty  has  its  duty  as  well  as  its  rights,  and  none  of 
these  local  Governments,  even  if  administered  with  more  regard  to  the 
just  demands  of  other  nations  than  they  have  been,  would  be  permitted 
in  a  spirit  of  Eastern  isolation  to  close  these  gates  of  intercourse  on  the 
great  highways  of  the  world,  and  justify  the  act  by  the  pretension  that 
these  avenues  of  trade  and  travel  belong  to  them,  and  that  they  choose 
to  shut  them,  or,  what  is  almost  equivalent,  to  encumber  them  with  such 
unjust  regulations  as  would  prevent  their  general  use." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Lamar,  July  25,  1858.     MSS.  Inst.,  Am.  St. 

"  This  Government  feels  a  deep  interest  in  all  the  ways  of  communi- 
cation between  the  Atlantic  and  Pacific,  and  if  a  railroad  can  be  au- 
thorized and  made  across  the  Isthmus  of  Chiriqui,  without  any  inter- 
ference with  existing  rights  or  auy  violation  of  the  good  faith  of  Xew 
Granada,  the  President  is  of  opinion  that  it  would  be  of  great  value  to 
commerce,  and  of  especial  value  to  the  United  States.  He  would, 
therefore,  be  glad  to  render  it  any  proper  assistance  within  his  reach. 
Yet  he  desires,  also,  that  the  Panama  road  should  continue  its  career 
of  usefulness  and  j)rosx)erity,  and  should  obtain  all  suitable  facilities 
from  New  Granada  for  the  prosecution  and  extension  of  its  great  and 
increasing  traffic.  In  any  conflict  of  interest  between  the  two  com- 
panies it  is  not  our  duty  to  interfere.  We  wish  them  both  success, 
and,  in  the  opinion  of  the  Attorney-General,  there  is  good  reason  to  be 
lieve  that  this  success  may  be  accomplished  without  any  material  con- 
flict between  them." 

Mr.  Cass.  Sec.  of  State,  to  Mr.  Jones,  May  4,  18G0.  MSS.  Inst.,  Colombia. 
In  the  instructions  of  Mr.  Seward,  Secretary  of  State,  to  Mr.  Burton, 
February  27,  1802,  he  says  :  "  I  have  examined  the  instructions  of  my 
predecessors,  Secretaries  Cass  and  Marcy,  and  I  find  no  reason  for  re- 
versiug  the  policy  so  distinctly  assumed  and  so  forcibly  maintained  by 
them,  in  reference  to  the  tonnage  and  other  taxes  imposed  upon  Ameri- 
can commerce  at  the  Isthmus  of  Panama." 

MSS.  lust.  Colombia. 

As  to  guarantee  of  Panama  neutrality  see  Mr.  Seward,  Sec.  of  Stale,  (o  Mr. 
Adams,  July  11,  1?-G2,     MSS.  Inst.,  Gr.  IJrit. 

''In  1850  the  naval  officer  in  command  of  our  Pacific  squadron  re 
ceivcd  orders  to  resist  by  force,  if  necessary,  the  collection  of  tlie  ton- 
nage taxes  which  tins  Government  declared  to  be  illegal.  I  refer  you 
to  Mr.  Marcy's  Xo.  20  of  31st  December,  1850,  to  Mr.  Dowlin,  upon  this 
point.     1  will  Ken«l  your  No.  Li  with  its  accomi)animents  and  with  a  copy 

101 


§  145.]  TIIEATIKS.  [CIIAP.  VI. 

of  tbis  instruction  to  tbo  Is'avy  Department,  with  a  rc'(iuest  that,  il'  a 
renewal  of  the  orders  of  1S5G  be  requisite,  in  view  of  the  lapse  of  time 
and  ebange  in  tbe  personnel  of  oflicers  in  command,  such  measures  may 
be  taken  as  will  secure  the  protection  of  tbe  interests  of  our  citizens  ou 
tbe  istbmus,  to  wbicb  tbey  are  entitled  under  tbe  solemn  guaranties  of 
tbe  Government  of  New  Granada." 

Mr.  Sewanl,  Sec.  of  State,  to  Mr.  I5iiitoii,  Tel..  27,  180'-'.     MSS.  Inst.,  Colombia. 

"Tbe  question  Avbieb  bas  recently  arisen  under  tbo  35tb  article  of 
tbe  treaty  witb  New  Granada,  as  to  tbe  oblij,Mtion  of  tbis  Government 
to  comply  witb  a  requisition  of  tbe  President  of  tbe  United  States  of 
Colombia  for  a  force  to  protect  tbe  Istbmus  of  Panama  from  invasion 
by  a  body  of  iiisurgents  of  tbat  country,  bas  been  submitted  to  tbe  con- 
sideration of  tbe  Attorney-General.  His  opinion  is,  tbat  neitber  ibe 
text  nor  tbe  spirit  of  tbe  stipulation  in  tbat  article  by  wbicb  tbe  United 
States  engages  to  preserve  tbe  ueutrality  of  tbe  Istbmus  of  Panama, 
imi)oses  an  obligation  on  tbis  Government  to  comj^ly  witb  a  requisition 
like  tbat  referred  to.  Tbe  purpose  of  tbe  stipulation  was  to  guarantee 
tbe  Istbmus  against  seizure  or  invasion  by  a  foreign  i)ower  only.  It 
<;ould  not  bave  been  contem])lated  tbat  we  were  to  become  a  i)arty  to 
any  civil  war  in  tbat  country  by  defending  tbe  Istbmus  against  anotber 
party.  xVs  it  may  be  presumed,  bowever,  tbat  our  object  in  entering 
into  sucb  a  stipulation  was  to  secure  tbe  freedom  of  transit  across  tbe 
Jstbmus,  if  tbat  freedom  sbould  be  endangered  or  obstructed,  tbe  em- 
ployment of  force  on  our  part  to  prevent  tbis  would  be  a  question  of 
grave  expediency  to  be  determined  by  circumstances.  Tbe  Department 
is  not  aware  tbat  tbere  is  yet  occasion  for  a  decision  upon  tbis  point." 

Mr.  Seward,  Sec.  of  State,  to  Jlr.  Biirtou  Nov.  [),  18G5.    IMSS.  Inst  ,  Colombia. 

Mr.  Seward's  observations  on  the  proposed  convention  with  the  United  States 
of  Colombia  as  to  a  ship  canal  across  the  Istbmns  will  bo  fonnd  in  his  in- 
struction to  Mr.Snllivan,  Sept.  17,  18GS.     MSS.  Inst.,  Colombia. 

"  I  bave  bad  tbe  bonor  to  receive  your  note  of  yesterday  stating  tbat 
you  bad  received  instructions  to  solicit  tbe  issue  of  sucb  orders  as  niay 
be  tbougbt  necessary  to  tbe  end  tbat  Colombian  vessels  may  be  treated 
in  tbe  ports  of  tbe  United  States  to  wbicb  tbey  may  convey  mercban- 
disc,  wben  tbe  latter  does  not  proceed  from  any  otber  port  of  tbe  United 
States  in  tbe  same  ocean,  in  tbe  same  manner  as  American  vessels  em- 
jdoyed  in  tbe  same  trade.  Your  note  furtlier  adverts  to  tbe  fact  tbat 
tbe  privilege  desired  was  secured  by  tbe  treaty  between  tbe  United 
States  and  New  Granada  of  the  12tb  of  December,  1846. 

"  In  reply  I  bave  to  state  tbat,  as  your  request  seems  to  imydy  an 
opinion  on  tbe  part  of  your  Government  tbat  tbe  treaty  adverted  to 
bas  been  definitively  terminated,  it  is  deemed  advisable  to  bold  tbe 
npplication  under  consideration  until  no  doubt  shall  remain  upon  that 
point.  The  35tb  article  of  tbe  treaty  stipulates  tbat  it  shall  hist  for 
twenty  years  from  tbe  exchange  of  ratifications,  w^bich  took  place  on 
102 


CHAP.  VI.]        COLOMBIA  AND  NEW  GRANADA.         [§  145. 

tbe  lOth  of  Juue,  1848.  The  same  article  further  provides,  °  Notwitli- 
standiug  tbe  foregoing,  if  neither  party  notifies  to  the  other  its  inten- 
tion of  reforming  any  of  or  all  the  articles  of  this  treaty,  twelve  months 
before  the  expiration  of  the  twenty  years  stipulated  above,  the  said 
treaty  shall  continue  binding  on  both  parties,  beyond  the  said  twenty 
years,  until  twelve  mouths  from  the  time  that  one  of  the  parties  notifies 
its  intention  of  proceeding  to  a  reform.' 

"  It  appears  that  under  date  the  23d  of  January,  1867,  General  Sal- 
gar,  then  accredited  to  this  Governiveut  as  envoy  extraordinary  and 
minister  j)leuiiiotentiary  of  the  United  States  of  Colombia,  addressed  to 
this  Department  a  note  from  ]!^ew  York,  in  which  he  stated  that  he  had 
been  instructed  to  set  on  foot  a  negotiation  for  the  purpose  of  renewing 
the  treaty  prior  to  the  termination  fixed  in  the  35th  article. 

"  The  receipt  of  this  note  was  acknowledged  in  one  from  the  Depart- 
ment of  the  29tli  of  January. 

"  With  another  note  of  the  23d  of  April,  18G7,  General  Salgar  trans- 
mitted a  copy  of  the  changes  which  his  Government  desired  in  the 
treaty,  and  offered  to  discuss  the  subject  at  such  time  as  might  be 
appointed  for  that  purpose. 

"  It  does  not  appear  that  any  reply  was  made  to  the  last-mentioned 
note,  or  that  the  discussion  proposed  by  General  Salgar  took  place. 
There  is  also  nothing  on  record  or  on  file  here  to  show  that  the  notes  of 
General  Salgar  referred  to  were  regarded  and  received  as  such  a  ter- 
mination of  the  treaty  as  that  for  which  the  instrument  itself  provides. 

"  Xor  does  it  appear  that  the  Secretary  of  the  Treasury  of  the  United 
States  has  been  informed  that  the  treaty  is  at  an  end,  and,  therefore, 
that  the  privileges  previously  enjoj'ed  under  it  by  Colombia,  in  the 
ports  of  the  United  States  must  be  discontinued.  Indeed,  so  far  as 
this  Department  is  aware,  those  privileges,  including  the  one  requested 
by  Mr.  Perez,  are  still  enjoyed  by  Colombian  vessels  and  their  cargoes. 
In  any  event,  before  a  definitive  answer  can  be  given  to  your  applica- 
tion, or  your  request  can  be  complied  with,  it  will  be  necessary  for  you 
to  state  that,  from  your  own  knowledge,  a  similar  privilege  is  enjoyed 
by  vessels  of  the  United  States  and  their  cargoes  in  the  ports  of  Co- 
lumbia." 

Mr.  Fisb,   Sec.   of  Stale,  to  Mr.   Perez,  Feb.  8, 1871.     MSS.  Notes,  Colombia; 
For.  Eel.,  1871. 

"  Your  note  of  the  15tli  ultimo,  relative  to  the  treaty  between'  the 
United  States  and  New  Granada  of  the  12th  of  December,  1846,  was 
duly  received.  Almost  ever  since,  however,  my  attention  has  been  so 
engrossed  by  other  important  business  that  it  has  been  impracticable  to 
secure  the  leisure  necessary  to  arrive  at  a  satisfactory  conclusion  upon 
that  subject.  Now,  however,  I  am  happy  to  be  able  to  announce  that 
although  literally  and  technically,  pursuant  to  the  clause  of  the  35th 
article  of  that  instrument  upon  (he  subject,  this  Government  might; 

103 


§  145.]  TREATIES.  [chap.  VI. 

hold  that  the  apijlicaliou  maile  by  Geueial  Sal^jar  lor  a  revision  of  the 
treaty,  iu  antieipation  of  a  lapse  of  the  time  fixed  for  its  termiuatioii, 
mifxht  be  held  to  have  broiif,'ht  about  that  resuH,  the  intentions  of  the 
l)arties  at  the  time  may,  as  you  observe,  be  allowed  to  govern  the 
question.  General  Salpir  in  his  notice  did  not  say  that  if  his  proposi- 
tion should  not  be  ace('i)ted  the  Colombian  Government  would  n'j*ard 
the  treaty  as  at  an  end,  and  IMr.  Si-ward  does  not  appear  to  have  re- 
ceived that  jn'oposition  as  a  formal  notice  of  termination.  Eis  silence 
ni)on  the  subject  may  fairly  be  construed  as  indicative  of  an  opinion 
on  his  i)art  that,  so  far  as  the  interests  of  the  United  States  were  con- 
cerned, no  change  in  the  treaty  was  required,  and  the  form  of  the  ai)pli 
cation  of  Colombia  may  also  be  construed  to  imply  that,  although  she 
might  prefer  the  changes  i)roposed  in  that  application,  she  did  not  re- 
gard them  as  indispensable  to  its  continuance.  Under  these  circum 
stances  it  may  be  said  to  comport  with  the  interests  of  both  parties  to 
look  upon  the  treaty  as  still  in  full  force,  but  as  subject  to  revision  or 
termination  in  the  form  and  upon  the  terms  stipulated, 

"The  instrument,  upon  the  whole,  is  believed  to  have  been  mutually 
advantageous.  It  is  true  that  the  flag  of  Colombia  may  not  have  as 
often  been  seen  in  the  ports  of  the  United  States  as  that  of  the  latter 
in  the  ports  of  Colombia.  This,  however,  should  net  be  imputed  to  any 
defect  in  the  treaty,  but  rather  to  the  diliereut  circumstances  of  the  two 
countries.  A  principal  object  of  New  Granada  in  entering  into  the 
treaty  is  understood  to  have  been  to  maintain  her  sovereignty  over  the 
Isthmus  of  Panama  against  any  attack  from  abroad.  That  object  has 
been  fully  accomplished.  Xo  such  attack  has  taken  place,  though  this 
Department  has  reason  to  believe  that  one  has  upon  several  occasions 
been  threatened,  but  has  been  averted  by  warning  from  this  Govern- 
ment as  to^its  obligation  under  the  treaty.  This  Government  has  every 
disjiosition  to  carrj'  the  treaty  into  full  effect.  If,  iu  the  opinion  of 
Colombia,  the  Executive  of  the  United  States  should  have  insisted 
ujion  a  construction  of  the  clause  prohibiting  the  coasting  trade  of  one 
country  to  the  vessels  of  the  other,  incompatible  with  that  equality  in 
matters  of  trade  and  navigation  w^hich  other  articles  of  the  instrument 
promise,  the  merchants  of  Colombia  may,  on  proper  ai)plication  to  the 
courts  of  the  United  States, have  their  rights  under  the  treaty  vindicated. 

"  We  heartily  desire  any  practicable  and  advantageous  increase  in  the 
commercial  intercourse  between  the  two  countries,  and  are  by  no  means 
so  selfish  as  to  prefer  that  this  should  be  carried  on  exclusively  under 
the  flag  of  the  United  States,  especially  if  we  should  have  promised 
that  Colombia  may  share  therein  on  equal  terms.  Recent  events,  which 
it  is  needless  to  i)articularize,  may  have  made  the  transit  of  the  Isthmus 
of  Panama  less  indispensable  to  communication  between  the  Territories 
of  the  United  States  on  the  Atlantic  and  those  on  the  Pacific  than  when 
ihe  treaty  was  concluded.  Similar  events,  however,  may,  it  is  ho])ed, 
104 


CHAP.  VI.]        COLOMBIA  AND  NEW  GRANADA.  [§  145. 

soou  impart  mcieased  activity  to  other  traflHc  betweeu  the  United  States 
and  Colombia  to  the  mutual  advantage  of  both  countries." 

Mr.  rish,  Sec.   of  Stale,  to  Mr.   Perez, May  27, 1871.     MSS.  Notes,  Colombia; 

For.  Pel.,  1871. 
As  to  isthmus,  see  infra,  $§  287,  ff. 

"This  Government,  by  the  treaty  with  Xew  Granada  of  1846,  has 
engaged  a  guarantee  of  neutrality  of  the  Isthmus  of  Panama.  This 
engagement,  however,  has  never  been  acknowledged  to  embrace  the 
duty  of  protecting  the  road  across  it  from  the  violence  of  local  factious. 
Although  such  protection  was  of  late  etficieutly  given  by  the  force 
under  the  command  of  Admiral  Almy,  it  appears  to  have  been  granted 
with  the  consent  and  at  the  instance  of  the  local  authorities.  It  is,  how- 
ever, regarded  as  the  undoubted  duty  of  the  Colombian  Government  to 
protect  the  road  against  attacks  from  local  insurgents.  The  discharge 
of  this  duty  will  be  insisted  upon." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Keeler,  Oct.  27,  1873.     MSS.  Dom.  Let. 

''This  Department  deems  it  important,  in  the  interest  of  geueral  com- 
merce, and  especially  of  the  carrying  trade  of  that  route,  that  these 
disturbances  should  be  guarded  against.  By  the  treaty  with  New 
Granada  of  1816  this  Government  has  engaged  to  guarantee  the  neu- 
trality of  the  Isthmus  of  Panama.  This  engagement,  however,  has 
never  been  acknowledged  to  embrace  the  duty  of  protecting  the  road 
across  it  from  the  violence  of  local  factious ;  but  it  is  regarded  as  the 
undoubted  duty  of  the  Colombian  Government  to  protect  it  against 
attacks  from  local  insurgents." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Scruggs,  Oct.  29, 1873.     MSS.  Inst.,  Colombia. 

By  a  diplomatic  arrangement  between  the  representatives  of  the 
United  States,  Germany,  France,  and  Great  Britain,  with  the  secretary 
of  foreign  affairs  of  Colombia  in  1876,  it  was  agreed  that  until  the  statute 
l)rescribing  deposit  of  papers  of  vessels  entering  Colombian  ports  with 
the  local  Colombian  authorities  should  be  modified  by  the  Colombian 
Congress,  such  papers  "  should  be  deposited  with  the  consul  of  the  re 
spective  nation,  or,  in  the  absence  of  such  consul,  with  the  consul  of  a 
friendly  power."     This  agreement  is  still  in  force. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Dichmau,  July  2(i,  1878.  MSS.  lust.,  Colombia. 
Sec  Mr.  Evarts  to  Mr.  Dichman,  Feb.  4,  1879,  as  to  the  persistence  of  Colom- 
bia in  the  obnoxious  statute. 

Ah  to  convention  of  1878betvfeen  the  Colombian  Government  and  the  Civil  In- 
ter-oceauic  Canal  Companj',  see  inquiries  of  Mr.  Evarts,  Sec.  of  State,  to 
Mr.  Dichman,  .July  20,  1878.     MSS.  lust.,  Colombia. 

Our  guarantee  of  neutrality  to  the  Isthmus  of  Panama  fniiiishes  no 
ground  for  any  action  by  this  Government  in  restraint  of  tlie  transjjor- 
tatiou  of  munitions  of  war  to  belligerents  in  a  war  as  to  wliich  our  Gov 
ernment  is  neutral. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Sherman,  Nov.  14,  1879.     MSS.  Dom.  Lot. 

105 


§  145.]  TREATIES.  [CIIAP.  VI. 

"Diplomatic  intercourse  with  Colombia  is  ayaiii  I'liUy  rcstoivd  by  the 
arrival  of  a  minister  from  that  country  to  the  United  States.  This  is 
especially  fortunate  in  view  of  the  fact  that  the  question  of  an  iiiter- 
oceanic  canal  has  recently  assumed  a  new  and  imi)ortant  asi)ect,  and  is 
now  under  discussion  with  the  Central  American  countries  through 
whose  territory  the  canal,  by  the  Nicarafjua  route,  would  have  to  pass. 
It  is  trusted  that  enlightened  statesmanship  on  their  part  will  see  that 
the  early  prosecution  of  S'Uch  a  work  will  largely  inure  to  the  benelit, 
not  otdy  of  their  own  citizeus  and  those  of  the  Ignited  States,  ])nt  of 
the  commerce  of  the  civilized  world.  Jt  is  not  doubted  that  should  the 
work  be  undertaken  under  the  protective  auspices  of  the  United  States 
and  upon  satisfactory  concessions  lor  the  right  of  way,  and  its  security, 
by  the  Central  American  Governments,  the  capital  for  its  completion 
would  be  readily  furnished  from  this  country  and  Europe,  which  might, 
failing  such  guarantees,  i)rove  inaccessible." 

rresidont  II;iycs,  Third  Aimual  Mcssngo,  t-s7'.). 
As  lo  isdiinus,  see  infra,  ^^  '287,  ff. 

The  grant  by  the  Colombian  authorities  to  the  United  States  of  a 
right  to  establish  coaling  stations  in  certain  i)orts  on  Colombian  wa- 
ters, may  be  asked  by  the  United  States  as  a  matter  of  international 
courtesy. 

Mr.  Evarts,  Stc,  oi'  State,  to  Mr.  Dichniaii,  April  lit,  l^st'.     MSS.  Inst.,  Colom- 
bia. 

"  By  the  treaty  of  184C  the  United  States  are  guarantors  of  the  neu- 
trality of  any  interoccauic  canal  through  the  Isthmus  of  Panama,  and 
of  the  sovereignty  of  the  Kepublic  of  Colombia  over  the  territory 
through  which  it  passes.  If  we  are  rightfully  informed,  no  other  Gov- 
ernment has  been  willing  to  rome  into  any  such  treaty  relations  with 
Colombia,  and  to  day  such  a  canal  by  whomsoever  comi)leted  would 
need  to  rest  upon  this  stipulated  protection  of  the  United  States,  and 
should  the  United  States  recognize  their  rights  under  this  concession, 
both  its  projectors  and  the  Government  of  Colombia  would  be  author- 
ized under  certain  contingencies  to  call  upon  and  be  wholly  dependent 
upon  this  Government  for  the  fulfillment  of  this  obligation.  Under 
such  circumstances  the  United  States  would  have  considered  it  as  the 
manifestation  of  a  just  and  friendly  spirit  if  the  Government  of  Colom- 
bia had  furnished  us  timely  information  of  the  proposed  concession,  and 
thus  enabled  us  to  judge  whether  the  conditions  under  which  our  guar- 
antee had  been  made  had  been  preserved  with  due  consideration  both 
of  the  rights  which  that  guarantee  confers  and  the  obligations  which  it 
imposes.     *     *     * 

"  But  it  cannot  be  overlooked  that  by  the  35th  article  of  the  treaty  of 

184G  the  United  States  has  not  only,  'in  order  to  secure  to  themselves 

the  tranquil  and  constant  enjoyment'  of  the  advantages  of  that  treaty, 

undertaken  to  'guarantee  positively  and  efficaciously  to  New  Granada' 

lOG 


OlIAr.  VI.]  COLOMBIA    AND    NEW    GRANADA.  [§  145. 

'the  perfect  neutrality  of  the  befoie-meutioned  Tsthnuis,'  but  the^^  have 
further  obliged  themselves  to  'also  guarantee  in  the  same  manner  the 
lights  of  sovereignty  and  property  which  New  Granada  has  and  pos- 
sesses over  the  said  territory.'  While,  therefore,  the  United  States 
have  perfect  confidence  in  these  representations,  as  well  as  in  the  strong 
friendship  of  the  French  Government,  it  can  scarcely  be  denied  that 
such  a  concession  to  foreign  subjects  would  introduce  new  questions  of 
relative  rights  and  interests  aflecting  both  the  sovereign  and  proprie- 
tary rights  ot  the  Government  of  Colombia  and  such  as  would  seriously 
enlarge  the  responsibilities  of  our  treaty  guarantee;  and  this  Govern- 
ment feels  that  it  is  not  unreasonable  in  expecting  that  any  concession 
involving  such  consequences  should  be  a  subject  of  joint  consideration 
by,  and  that  its  details  can  scarcely  be  settled  without  a  preliminary 
agreement  between,  the  Governments  of  Colombia  and  the  United  States 
as  to  their  effect  upon  existing  treaty  stipulations." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Dicliman,  Apr.  19,  1880.     MSS.  lust.,  Colom- 
bia. 

''It  is,  however,  deemed  prndent  to  instruct  you,  with  all  needful 
reserve  and  discretion,  to  intimate  to  the  Colombian  Government  that 
any  concession  to  Great  Britain  or  any  other  fcreign  power,  looking  to. 
the  surveillance  and  possible  strategic  control  of  a  highway  of  whose 
neutrality  we  are  the  guarantors,  would  be  looked  upon  by  the  Gov- 
ernment of  the  United  States  as  introducing  interests  not  compatible 
with  the  treaty  relations  which  we  maintain  with  Colombia." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Dichman,  July  31,  18f-0.     MSS.  lust.,  Colom- 
bia. 

'■The  relations  between  this  Government  and  that  of  the  United  States 
of  Colombia  have  engaged  public  attention  during  the  past  year,  mainly 
by  rea.son  of  the  project  of  an  iuteroceanic  canal  across  the  Isthmus  of 
Panama,  to  be  built  by  private  capital  under  a  concession  from  the 
Colombian  Government  for  that  purpose.  The  treaty  obligations  sub- 
sisting between  the  United  States  and  Colombia,  by  which  we  guaran- 
tee the  neutrality  of  the  transit  and  the  sovereignty  and  property  of 
Colombia  in  the  Isthmus,  make  it  necessary  that  the  conditions  under 
which  so  stupendous  a  change  in  the  region  embraced  in  this  guarantee 
should  be  effected — transforming,  as  it  would,  this  isthmus,  from  a 
barrier  between  the  Atlantic  and  Pacific  Oceans,  into  a  gateway  and 
thoroughfare  between  them  for  the  navies  and  the  merchant  ships  of  the 
world — should  receive  the  approval  of  this  Government,  as  being  com- 
patible with  the  discharge  of  those  obligations  on  our  part,  an<l  con- 
sistent with  our  interests  as  the  principal  commercial  power  of  the 
Western  Ucmisphere.  The  views  which  I  expressed  in  a  special  message 
to  Congress  in  March  last,  iti  relation  to  this  i)roject,  I  deem  it  my  duty 
again  to  press  ui)on  your  attention.  Subsequent  consideration  has  but 
confirmed  the  opinion  '  that  it  is  tlio  right  and  duty  of  the  United  States 

107 


§  145.]  TKKATIES.  [CIIAP.  VI. 

to  assert  and  iiiaiiitaiii  such  supervision  and  authority  over  any  inter- 
oceanic  canal  across  the  isthmus  that  connects  North  and  South  America 
as  will  protect  our  national  interests." 

Pri'sidiMit  Hayes,  Fourth  Annual  Message,  1880. 

For  projected  treaty  as  to  guarantee  ol"  iHthmus  between  tlie  United  Stati's  and 

C<donibia,  see  Mr.  Evarts,  Sec.  of  State  to  Mr.  Diehnian,  I'eb.  r>,  18^1. 

MSS.  Inst.,  Colombia. 

"You  will  receive  herewith  a  copy  of  a  memorandum  indicating  the 
subject  and  scoi)e  of  a  conferenco  between  the  Colombian  minister  and 
myself  in  relation  to  certain  ]>rqjects  of  treaty  which  have  been  con- 
sidered by  us.  You  are  already  advised  of  the  general  situation  of 
the  subject  as  hitherto  treated  between  this  Government  and  that  of 
Colombia. 

"You  will  proceed  to  Xew  York,  and  in  an  interview  with  tlie(>olom- 
hian  minister,  who  has  been  advised  of  your  coming,  you  will,  guided 
by  this  memorandum,  submit  to  him  the  Tiews  of  this  l)e])artment. 

"  Slunild  the  result  of  your  conference  be  an  indication  on  his  part  of 
his  authority  and  readiness  to  conclude  a  treaty  upon  the  modifications 
suggested,  you  will  inform  him  that  I  am  prepared  to  renew  our  confer- 
ences upon  that  basis  in  the  expectation  of  a  conclusive  arrangemeht. 
But  if,  as  is  more  probable,  you  find  that  he  considers  himself  only 
authorized  to  refer  to  his  Government  the  views  entertained  between 
you,  your  object  will  be  by  free  and  frank  consultation  to  ascertain  how 
far  his  opinions  and  those  expressed  by  me  in  the  memorandum,  ])romise 
the  possibility  of  an  accord  upon  the  subjects  embraced,  which  will  jus- 
tify positive  instructions  in  that  vscnse  to  the  United  States  minister  at 
Bogota. 

"  You  will  bring  or  forward  a  report  of  your  interview  in  the  sha])e  of 
a  2)rccis  of  the  conversation  between  you. 

"It  is  ho})ed  that  such  a  report  can  reach  this  Department  in  time  tor 
the  next  mail  to  Panama.  But  if  you  find  this  imj)ossible,  you  will 
inclose  a  copy  of  such  report  in  the  letter  addressed  to  Mr.  Dichman, 
which  is  sent  you  with  this,  and  mail  the  letter  and  inclosurc  so  as  to 
secure  its  transmission  from  New  Y'ork  by  the  mail  which  leaves  imme- 
diately after  your  interview  with  the  Colombian  Minister." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Trescot,  Feb.  If),  1881.     MSS.  Inst.,  Colombia. 
ForRcl.,  1831. 

By  the  protocol  of  February  17,  1881,  signed  by  General  Domingo, 
rei)feseutingthe  Colombian  Government,  and  Mr.  Trescot,  representing 
Mr.  Evarts,  Secretary  of  State,  "  the  United  States  Government  has  not 
abandoned  its  right  to  insist  that  as  guarantor  of  the  neutrality  of  tran- 
.sit  and  sovereignty  of  Colombia  over  isthmian  territory  its  consent 
was  and  will  be  necessarj'  to  the  validity  of  any  concession  which  might 
all'ect  the  conditions  of  the  guarantee,  but  it  has  simply.  ])re.sently  ac- 

108 


CHAP.  VI.]       COLOMBIA  AND  NEW  GRANADA.  [§  145. 

cepted  such  a  practical  recoguitiou  of  its  rights  as  giiarautor  as  will 
enable  the  Government  to  maintain  its  rights  under  the  treaty  of  184G 
whenever  the  necessity  for  such  maintenance  shall  arise,  and  you  will 
govern  any  representations  you  may  make  accordingly.  This  will  leave 
for  further  consideration  the  value  and  imiDortance  of  requiring  a  firm 
stipulation  that  no  new  concession  or  modification  of  concession  can  be 
made  without  the  concurrent  approval  of  its  terms  by  the  United  States 
as  not  objectionable  treatment  of  the  subject  of  our  treaty  engagements 
with  Colombia — that  is  to  say  the  Isthmus  of  Panama  and  interoceauic 
communication." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Dicbman,  Feb.  18,  1881.     MSS.  lust.,  Colom- 
bia. 

"  The  United  States  recognizes  a  proper  guarantee  of  neutrality  as 
essential  to  the  construction  and  successful  operation  of  any  highway 
across  the  Isthmus  of  Panama,  and  in  the  last  generation  every  step 
was  taken  by  this  Government  that  is  deemed  requisite  in  the  premises. 
The  necessity  was  foreseen  and  abundantly  provided  for,  long  in  ad- 
vance of  any  possible  call  for  the  actual  exercise  of  iDower. 

"  In  184G  a  memorable  and  important  treaty  was  negotiated  and  signed 
between  the  United  States  of  America  and  the  Eepublic  of  N'ew  Gran- 
ada, now  the  United  States  of  Colombia.  By  the  35th  article  of  that 
treaty  in  exchange  for  certain  concessions  made  to  the  United  States 
we  guaranteed  'positively  and  eflQcaciously '  the  perfect  neutrality  of  the 
Isthmus  and  of  any  interoceanic  communications  that  might  be  con- 
structed upon  or  over  it  for  the  maintenance  of  free  transit  from  sea  to 
sea ;  and  we  also  guaranteed  the  rights  of  sovereignty  and  property  of 
the  United  States  of  Colombia  over  the  territory  of  the  Isthmus  as 
included  within  the  borders  of  the  State  of  Panama. 

"In  the  judgment  of  the  President  this  guarantee,  given  by  the  United 
States  of  America,  does  not  require  reinforcement,  or  accession,  or  as- 
sent, from  any  other  power.  In  more  than  one  Ihstance  this  Govern- 
ment has  been  called  upon  to  vindicate  the  neutrality  thus  guaranteed, 
and  there  is  no  contingency  now  foreseen  or  apprehended  in  which  such 
vindication  would  not  be  within  the  power  of  this  nation.     *     *     * 

"The  great  European  powers  have  repeatedly  united  in  agreements, 
such  as  guarantees  of  neutrality  touching  the  political  condition  of 
states  like  Luxembourg,  Belgium,  Switzerland,  and  parts  of  the  Orient, 
where  the  localities  were  adjacent,  or  where  the  interests  involved  con- 
cerned them  nearly  and  deeply.  Iiccognizing  these  facts  the  United 
States  has  never  offered  to  take  part  in  sucli  agreements,  or  to  make 
any  agreements  supplementary  to  them.  AN'^hile  thus  observing  the 
strictest  neutrality  with  respect  to  complications  abroad,  it  is  the  long 
settled  policy  of  tliis  Government  that  any  extension  to  our  shores  of 
the  political  system  by  whidi  tlie  great  po\v<Ms  have  controlled  and  de- 

109 


§  145.  J  TREATIES.  [chap.' VI 

teiiuiiic'il  events  iu  Knrope  would  be  attended  with  danger  to  the  peace 
and  wellaie  of  this  nation.'' 

-Mr.  Blaino,  Sec.  of  State,  to  Mr.  Lowell,  June  ',M,  IHHl.  MSS.  Iimt.,  Gr.  Brit.; 
For.  Kel. 

"The  questions  y;iowing  out  of  the  proposed  interoceanic  waterway 
across  the  Isthmus  of  Panama  are  of  grave  uational  importance.  This 
Government  has  not  been  unmindful  of  the  solemn  oblioations  imposed 
ui)on  it  by  its  compact  of  181G  with  Colombia,  as  the  independent  and 
sovereign  mistress  of  the  territory  crossed  by  the  canal,  and  has  sought 
to  render  them  effective  by  fresh  engagements  with  the  Colombian  Ke- 
public  looking  to  their  practical  execution,  The  negotiations  to  this 
end,  after  they  had  reached  what  appeared  to  be  a  mutually  satisfactory 
solution  here,  were  met  in  Colombia  by  a  disavowal  of  the  powers  which 
its  envoy  had  assumed,  and  by  a  i)roposal  for  renewed  negotiation  on  a 
modified  basis. 

"Meanwhile  this  Government  learned  that  Colombia  had  proposed  to 
the  European  powers  to  join  in  a  guarantee  of  the  neutrality  of  the  pro- 
posed Panama  Canal — a  guarantee  which  would  be  in  direct  contraven- 
tion of  our  obligation  as  the  sole  guarantor  of  the  integrity  of  Colombian 
territory  and  of  the  neutrality  of  the  canal  itself.  My  lamented  prede. 
cessor  felt  it  his  duty  to  place  before  the  European  powers  the  reasons 
which  make  the  prior  guarantee  of  the  United  States  indispensable,  and 
for  which  the  interjection  of  any  foreign  guarantee  might  be  regarded 
as  a  superfluous  and  unfriendly  act. 

"Foreseeing  the  "l)robable  reliance  of  the  British  Government  on  the 
provisions  of  the  Clayton-Bulwer  treaty  of  ISoO,  as  affording  room  for 
a  share  in  the  guarantees  which  the  United  States  covenanted  with 
Colombia  four  years  before,  I  have  not  hesitated  to  supplement  the 
action  of  my  predecessor  by  proposing  to  Her  Majesty's  Government 
the  modification  of  that  instrument  and  the  abrogation  of  such  clauses 
thereof  as  do  not  comport  with  the  obligations  of  the  United  States 
toward  Colombia,  or  with  the  vital  needs  of  the  two  friendly  parties  to 
the  comiiact." 

Prcsideut  Arthur,  First  Annual  Message,  1881. 

As  to  continuance  of  imposition  of  Colombian  law,  requiring  the  deposit  of 
foreign  ships'  papers  at  the  isthmus  ports,  see  instructions  of  Mr.  Freling- 
huysen.  Sec.  of  State,  to  Mr.  Scruggs,  March  6, 1883,  Inst..  Colombia. 

"Early  iu  March  last  war  broke  out  in  Central  America,  caused  by 
the  attempt  of  Guatemala  to  consolidate  the  several  States  into  a  sin- 
gle Government.  In  these  contests  between  our  neighboring  states  the 
United  States  forbore  to  interfere  actively,  but  lent  the  aid  of  their 
friendly  oflices  in  deprecation  of  war,  and  to  promote  peace  and  con- 
cord among  the  belligerents,  and  by  such  counsel  contributed  impor- 
tantly to  the  restoration  of  tranquillity  in  that  locality. 

"Emergencies  growing  out  of  civil  war  in  the  United  States  of  Co- 
lombia demanded  of  the  GoveTumeut  at  the  beginning  of  this  Admin- 
110 


CnAl\  VI.]  COLOMBIA   AND    NEW    GKANADA.  [§  145. 

istratioii  the  cmploymeut  of  armed  force  to  fulflll  its  guarantees  uuder 
the  thirty-fifth  article  of  the  treaty  of  184G,  in  order  to  keep  the  transit 
open  across  the  Isthmus  of  Panama.  Desirous  of  exercising  only  the 
powers  expresslj'  reserved  to  us  by  the  treaty,  and  mindful  of  the  rights 
of  Colombia,  the  forces  sent  to  the  Isthmus  were  instructed  to  confine 
their  action  to  'positively  and  efficaciously'  preventing  the  transit  and 
its  accessories  from  being  'interrupted  or  embarrassed.' 

"The  execution  of  this  delicate  and  responsible  task  necessarily  in- 
volved police  control  where  the  local  authority  was  temporarily  power- 
less, but  always  in  aid  of  the  sovereignty  of  Colombia.  The  prompt 
and  successful  fulfillment  of  its  duty  by  this  Government  was  highly 
appreciated  by  the  Government  of  Colombia,  and  has  been  followed 
by  expressions  of  its  satisfaction.  Iligh  praise  is  due  to  the  officers 
and  men  engaged  in  this  service.  The  restoration  of  peace  on  the 
Isthmus  by  the  re-establishment  of  the  constituted  Government  there 
being  accomplished,  the  forces  of  the  United  States  were  withdrawn." 
President  Clevelaud,  Fii'st  Annual  Message,  1885.     See  App.,  vol.  iii,  §  145. 

Colombian  vessels  are  entitled,  under  the  treaty  with  the  United 
States,  to  make  repairs  in  our  ports  when  forced  into  them  by  stress  of 
weather,  but  they  cannot  enlist  recruits  there,  either  from  among  our 
citizens  or  foreigners,  except  such  as  may  be  transiently  within  the 
United  States. 

2  Op.,  4,  Wirt,  18->5. 

The  words  of  the  treaty  of  1846  with  New  Granada  are  not  the  test 
by  which  to  determine  what  is  or  what  is  not  within  the  true  limits  of 
the  Isthmus  of  Panama,  with  reference  to  the  exclusive  right  of  a  com- 
pany to  make  a  railroad  across  that  isthmus.  The  act  of  the  New 
Granadian  Government  conceding  such  exclusive  right  must  be  con- 
strued so  as  to  give  such  comjiany  that  right  within  the  true  geograph- 
ical  boundaries  of  the  isthmus  named. 
U  Op.,  391,  Black,  1859. 

The  35th  article  of  the  treaty  of  184G  with  New  Granada  binds  the 
United  States  absolutely  to  guarantee  the  perfect  neutrality  of  the 
Isthmus  of  Panama,  on  the  demand  of  the  proper  party  ;  and  this  obli- 
gation must  be  performed  by  any  and  all  means  which  may  bo  found 
lawful  and  expedient. 

11  Op.,  G7,  Bates,  1864. 

IJut  this  article  does  not  oblige  this  Government  to  protect  the  Isth- 
mus of  Panama  from  invasion  by  a  body  of  insurgents  from  the  United 
States  of  Colombia. 

11  Op.,  :591,  Speed,  18G5. 

The  convention  of  18G1  with  the  United  States  of  Colombia  confers 
on  the  commission  thereby  created  authority  to  decide  the  cases  which 

111 


§  145.]  TREATIES.  [CIIAP.  VI. 

liad  been  pioseiitod  within  the  time  isi)ccilii'(.l,  and  wliifh  had  not  beeu 
decided  by  the  connnission  ai)pointed  nnder  the  convention  with  New 
Granada  of  1857,  and  theretbro  conferred  jurisdiction  to  deterniino  vvliat 
cases  had  been  presented  to,  but  not  (h^'cicU'd  by,  the  ohl  commission. 
11  Op.,  40-.',  Speed,  ISO.".. 

The  chiim  of  IJ.  AV.  Clibbes  having  Ix-en  (hily  refciicd  to  the  commis- 
sioners under  the  convention  with  New  Granada  of  1S57  (Pub.  Trs , 
o()4),  and  submitted  to  tlie  um])ire,  wlio  rejioiti'd  an  award  <bniiij;-  the 
existence  of  the  commission,  and  payment  havinj;'  been  suspencU'd  by 
request  of  the  Secretary  of  State,  and  the  case  liaving  been  afterward 
referred,  without  the  claimant's  consent,  to  the  comnii.ssion  under  the 
convention  with  Cok)mbia  of  1804  (Pub.  Trs.,  158),  as  the  iei)iesenta- 
tivo  of  the  hite  Republic  of  New  Granada,  it  was  held,  that,  by  the  sub- 
mission of  this  claim  to  the  latter  commi.ssion  in  the  manner  stated,  the 
claiuumt  was  not  divested  of  his  rij,dits  against  New  Granada  under  the 
award  of  the  umpire  aforesaid. 

i;^  Op.,  19,  Hoar,  1801);  sec  hifra,  $  22\. 

The  award  not  having;  been  vacated,  oi)ened,  or  set  aside  during  the 
lifetime  of  the  former  commission,  and  the  claimant  having  done  noth- 
ing since  to  waive  his  rights  thereunder,  it  should  be  treated  by  our 
Government  as  a  valid  and  conclusive  ascertainment  of  his  claim  against 
New  Granada. 

13  Op.,  19,  Hoar,  1869. 

By  article  35  of  the  treaty  of  December  12,  184G,  with  New  Granada, 
it  was  provided  that  the  right  of  transit  across  the  Isthmus  of  Panama 
"  should  be  open  and  free  to  the  Government  and  citizens  of  the  United 
States  5  *  *  *  nor  shall  the  citizens  of  the  United  States  be  liable 
to  any  duties,  tolls,  or  charges  of  any  kind  to  which  native  citizens  are 
not  subjected,  for  thus  passing  the  said  isthnuis."  When  gold  was  dis- 
covered in  California  in  1848,  the  isthmus  became  a  great  thoroughfare 
for  citizens  of  the  United  States,  and  the  State  of  Panama,  a  prov- 
ince of  New  Granada,  began,  in  1849,  to  lev3'  a  tax  on  all  persons 
crossing  the  isthmus.  It  was  held  that  this  tax  defeated  the  plain  in- 
tent of  the  treaty,  being  actually,  though  not  ostensibly,  leveled  at 
citizens  of  the  United  States  and  falling  principally  upon  them. 

13  Op.,  547,  Akerman,  1871. 

This  question  was  before  the  "Washington  Commission  of  1SG5. 

By  the  law  passed  by  the  i)rovincial  chamber  of  Panama  captains  of 
all  vessels  embarking  or  disembarking  passengers  in  Panama  were  re- 
quired to  pay  two  dollars  for  each  one  of  said  passengers.  The  Pacific 
Mail  Steamship  Company,  an  American  company,  made  a  claim  before 
the  above  commission,  on  the  ground  stated  in  the  foregoing  oi)inion. 
The  claim  was  rejected  by  the  umpire  for  want  of  jurisdiction.  At  that 
time  the  United  States  had  never  definitely  or  formally  taken  the  posi- 

112 


CHAP.  VI.]         COLOMBIA  AND  NEW  GRANADA.         [§  145. 

tiou  that  tbe  tax  was  a  violatiou  of  the  treaty  of  1846;  aud  tlie  supreme 
council  of  Colombia  bad  rejected  the  claim  of  the  steamship  company 
upon  the  express  ground  that  the  law  imposing  the  tax  was  not  a  viola- 
tion of  the  treaty.  Under  these  circumstances  the  umi)ire  said,  "Be- 
ing of  opinion,  therefore,  that  the  construction  to  be  put  on  the  treaty 
has  not  been  settled  by  the  proper  authorities  ;  that  the  Commission  is 
not  empowered  to  settle  a  question  of  such  a  nature,  and  that  upon  the 
decision  of  that  question  the  right  of  the  company  to  indemnity,  if 
otherwise  unobjectionable,  must  depend,  I  reject  this  claim,  with  the 
declaration  that  this  award  does  not  i)rejiidice  the  rights  of  the  claim- 
ants should  the  Government  of  the  United  States  decide  at  any  time 
hereafter  that  under  the  treaty  of  1846  the  imi^osition  of  the  passenger 
tax  constituted  such  a  violation  of  its  letter  or  spirit  as  to  authorize  a 
demand  for  redress. 

Wasliiugtoa  Commission,  1865.     MSS.  Dept.  State. 
As  to  istbmns,  see  further  infra,  $$  2?>7,ff. 

"  The  convention  with  Colombia  was  the  first  of  a  long  series  of  treaties 
of  amity  and  commerce  with  the  several  American  States  of  Spanish  or 
Portuguese  origin.  It  contained,  in  addition  to  most  of  the  liberal  pro- 
visions already  noted,  an  agreement,  which  has  since  been  incorporated 
into  many  other  treaties,  that  infractions  of  the  treaty  by  citizens  of 
either  party  should  not  interrupt  the  harmony  and  good  correspondence 
between  the  two  nations.     *     *     * 

"In  the  year  1831  the  Republic  of  Colombia  separated  into  the  three 
independent  Eepublics  of  Ecuador,  New  Granada,  and  Venezuela;  and 
New  Granada  iu  1862  took  upon  itself  the  name  of  the  United  States 
of  Colombia. 

"It  was  while  the  territory  bore  the  name  of  New  Granada  that  the 
treaty  of  amity,  commerce,  and  navigation,  of  December  12,  1846,  was 
concluded. 

"In  18G6  some  correspondence  took  place  respecting  the  construction 
of  the  guarantee  of  the  United  States  in  the  treaty  of  1846.  No  result 
was  reached. 

"On  the  23d  of  April,  1867,  the  minister  of  Colombia  at  Washington 
proposed  to  the  Secretary  of  State  to  make  certain  changes  in  the  ex- 
isting treaty.  At  the  time  these  proposals  were  made  nineteen  yeais 
had  not  expired  from  the  date  of  the  exchange  of  the  ratifications  of 
the  treaty,  and  a  question  arose  whether,  under  the  thirty-fifth  article 
of  the  treaty,  they  operated  to  terminate  it.  Mr.  Perez,  the  Colombian 
minister  at  Washington,  wrote  Mr.  Fish,  April  15, 1871 :  '  Such  documents 
Ciiunot  *  *  *  t)e  considered  as  a  notification  of  the  cessation  of  the 
treaty,  and,  in  fact,  they  have  hitherto  not  been  so  considered.  In  both 
countries  the  treaty  has  been  and  still  is  considered  as  being  in  force.' 
I^Ir.  Fish  replied,  'xMthough  literally  and  technically^,  pursuant  to  the 
clause  of  tin;  35th  article  of  that  instrument  upon  the  subject,  this  Gov- 
orninent  might  hold  that  i\ni  application  made  by  General  Salgar  for  a 
revision  of  tlie  treaty  in  anticipation  of  a  lapse  of  the  time  fixed  for  its 
termination  might  be  held  to  have  brought  about  that  result,  the  inten- 
tions of  tin;  jiarties  at  the  time  may,  as  you  observe,  be  allowed  to  gov- 
ern the  fpicstion.  (Jeneral  Salgar,  in  his  notice,  did  not  say  that  il' 
liis  proixjsition  should  not  be  acce])t('d  the  Cidombian  Government  would 
regard  tin*  treaty  as  at  an  end,  and  Mr.  Seward  does  not  ai)})ear  to  Inive 
received  that  [)roi)osition  as  a  foinial  notice  of  termination.     His  silence 

S.  Mis.  102— VOL.  II 8  113 


§  146.]  TREATIES.  [chap.  VI. 

upon  the  subject  may  fjiiily  be  construed  as  iudicative  of  au  opiuiou  on 
bis  part  that,  so  lar  as  the  interests  of  the  United  States  were  con- 
cerned, no  change  in  the  treaty  was  required,  and  the  form  of  the  appli- 
cation of  Cok)inbia  may  also  be  construed  to  imjily  that,  although  she 
might  prefer  the  changes  proposed  iu  that  ai)plication,  she  did  not  re- 
gard them  as  indisi)ensable  to  its  continuance.  Under  these  circum- 
stances it  may  be  said  to  conii)ort  with  the  interests  of  both  parties  to 
look  upon  the  treaty  as  still  in  full  force,  but  as  subject  to  revision  or 
termination  in  the  form  and  upon  tlic  terms  stii)ulated."' 

Mr.  J.  C.  B.  Davis'  Notes,  iVc. 

It  is  to  be  observed  that  the  word  "  neutrality"  iu  the  conventiou  of 
184G,  is  not  used  in  the  technical  sense  of  "  neutralization."  "  Neutral- 
ization," as  is  elsewhere  seen,  {svpi'a,  §  40;  vifra,  §  130 //")  is  the  assign- 
ment to  a  particular  territory  or  territorial  water  of  sucli  a  (puility  of 
])ermanent  neutrality  in  resi)ect  to  all  future  wars  as  will  ])rotect  it 
from  foreign  belligerent  disturbance.  This  quality  can  only  be  im- 
])ressed  by  the  action  of  the  great  })owers  by  whom  civilized  wars  are 
waged  and  bj'  whose  joint  interposition  such  wars  could  be  averted. 
As  the  "neutrality"  of  the  Isthmus  is,  by  the  conventiou  before  us, 
guaranteed  only  by  the  United  States,  it  is  not  a  neutralization  in  the 
above  sense,  but  only  a  pledge  and  guarantee  of  protection. 

As  to  noutralization  of  Istlimian  canal,  sco  itrfra,  $  150^. 

(8)  Costa  Rica  and  Honduras. 

§  14G. 

''The  settlement  of  the  question  respecting  the  port  of  San  Juan  de 
Nicaragua,  and  of  the  controversy  between  the  Republics  of  Costa  Eica 
and  Nicaragua  in  regard  to  their  boundaries,  was  considered  indispen- 
sable to  the  commencement  of  the  ship-canal  between  the  two  oceans, 
vhich  was  the  subject  of  the  convention  between  the  United  States  and 
Great  Britain  of  the  19th  of  April,  1850.  Accordingly  a  proposition  for 
the  same  purposes,  addressed  to  the  two  Governments  in  that  quarter, 
and  to  the  IMosquito  Indians,  was  agreed  to  in  April  last  by  the  Secre- 
tary of  State  and  the  minister  of  Her  Britannic  Majesty.  Besides  the 
wish  to  aid  iu  reconciling  the  differences  of  the  two  Eepublics,  I  en- 
gaged in  the  negotiation  from  a  desire  to  place  the  great  work  of  a  ship- 
canal  between  the  two  oceans  under  one  jurisdiction,  and  to  establish 
the  important  port  of  San  Juan  de  Nicaragua  under  the  Government  of 
a  civilized  power.  The  proposition  in  question  was  assented  to  by  Costa 
Rica  and  the  Mosquito  Indians.  It  has  not  proved  equally  acceptable 
to  Nicaragua,  but  it  is  to  be  hoped  that  the  further  negotiations  on  the 
subject  which  are  in  train  will  be  carried  on  in  that  spirit  of  conciliation 
and  compromise  which  ought  always  to  prevail  on  such  occasions,  and 
that  they  will  lead  to  a  satisfactory  result." 

President  Fillmore,  Third  Annual  Message,  1852. 

The  guarantee  to  Honduras  of  neutrality  of  interoceanic  communica- 
tion does  not  imply  "  that  the  United  States  are  to  maintain  a  police  or 

114 


CHAP.  VI.]  COSTA   KICA    AND    HONDURAS.  [§  14(;. 

other  force  in  Houduias  for  the  purpose  of  keepiug  ix>tty  trespassers 
from  the  railway." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Baxter,  May  12, 1871.     MSS.  lust.,  Hondt.^j. .  Yqt 

Eel.,  1871.  '  ' 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Torhert,  Mar.  20,  1871.    MSS.  lust.,  Sau  Salvador  ^. 

ibid. 
As  to  submission  by  Costa  Eica  aud  the  Uuited  States  of  Colombia  of  their  difiS- 
culties  to  the  arbitration  of  the  Kiug  of  Belgium,  see  letter  of  Mr.  Blaine, 
Sec.  of  State,  to  Mr.  Putnam,  May  31,  1881.     MSS.  Inst.,  Belgium. 

"  Information  has  been  received  at  this  Department  that  the  Republics 
of  Costa  Plica  aud  the  United  States  of  Colombia  have,  by  convention, 
agreed  to  refer  certain  differences  on  the  question  of  boundaries  to  ar- 
bitration. The  arbitrators  named  in  the  convention  are.  His  Majesty 
the  Kiu.i^  of  the  Belgians,  His  Majesty  the  King  of  Spain,  and  his  Ex- 
cellency- the  President  of  the  Argentine  Eepublic,  the  arbitration  being 
offered  to  each  in  the  order  named. 

"  I  have  reason  to  believe  that  the  invitation  to  act  as  arbitrator  ex- 
tended to  the  King  of  the  Belgians  will  be  declined,  aud  it  is  to  be  pre- 
sumed that,  according  to  the  terms  of  the  convention,  a  similar  appli- 
cation will  then  be  made  to  the  King  of  Spain. 

"The  subject  submitted  to  arbitration  is  the  boundary  line  between 
the  Republic  of  Costa  Rica  and  the  State  of  Panama,  one  of  the  constit- 
uent states  of  the  United  States  of  Colombia,  and  its  decision  must 
seriously  affect  the  extent  of  the  littoral  territory  of  Panama,  both  on 
the  Atlantic  and  the  Pacific  coast.  As  you  are  aware,  by  the  thirty-fifth 
article  of  the  treaty  of  1846  between  the  United  States  of  America  and 
the  United  States  of  Colombia,  the  United  States  of  America  have  not 
ouly  guaranteed  the  neutrality  of  any  interoceanic  connection  across  the 
Isthmus  of  Panama,  but  also  the  sovereignty  of  the  United  States  of 
Colombia  in  and  over  the  state  of  Panama. 

"This  guarantee  has  now  existed  (and  on  more  than  one  occasion  been 
enforced)  for  thirty-five  years.  Under  its  protection  all  efforts  for  the 
execution  of  an  interoceanic  canal  have  hitherto  been  attempted,  and 
the  present  enterprise  so  largely  attracting  the  attention  of  the  world, 
by  whatever  individuals  it  may  be  undertaken,  is  equally  covered  by  the 
obligations  and  responsibilites  of  that  guarantee.  Any  question  which, 
by  affecting  the  boundaries  of  the  State  of  Panama,  either  enlarges  or 
(Ihninishes  the  rights  or  the  obligations  of  the  United  States  of  Amer- 
ica, under  this  guarantee,  is  of  direct  and  practical  interest  to  this  Gov- 
ernment. 

"  It  has  been,  therefore,  a  matter  of  surprise  to  the  Government  of  the 
United  States  of  America  that  this  convention  has  been  negotiated 
between  the  two  Republics  without  comniunicjation  to  us  either  of  its 
l)urposes  or  methods. 

"The  Government  of  the  United  States  of  America  recognizes  the  wis- 
dom of  such  a  mode  of  settlement  for  international  di'l'ercnces,  and  is 
far  from  making  any  pretension  to  be  the  only  or  necessary  arbiter  to 
whom  the  Republics  of  South  and  Central  America  should  appeal.    In- 

115 


\  146.]  TREATIES.  [CIIAP.  VI. 

(loeil,  I  inay  'j'^^  fiirtlit'r  and  .say  that  this  Govcnmioiit  can  readily  uiulrr- 
stoud  ai>''  iippi't'ciate  the  IVelinij;  which  woidd  induce  the  Spanish  J{ei)ul)- 
jigg  *i  this  continent  to  seek  in  the  great  monarchy  liom  whicli  they 
nave  derived  their  lile,  their  hinjjnage,  and  their  laws,  a  sympathizinji^ 
umpire.  AVhile,  therefore,  this  Government  has  no  dissatisfaction  to 
express  at  the  selection  of  His  INIajesty  the  K'u\<^  of  Spain,  it  is  only 
proper  to  avoid  all  possibility  of  future  misunderstanding  between  His 
^lajesty  and  the  Government  of  the  United  States  that  His  Majesty 
should  be  informed  of  the  view  of  this  convention  entertained  by  the 
Ciovcrnment  of  the  United  States. 

"This  Government  is  of  opinion  that  any  (luesiion  allecting  the  teni- 
torial  limits  of  the  State  of  I'anama  is  to  it  one  of  direct  ])ractical  con 
cern,  and  that  under  the  guarantee  of  the  treaty  of  181G  it  is  entitled 
to  an  active  iutirposition  in  the  solution  of  anj^such  question,  should  it 
deem  that  its  interests  require  such  intervention;  it  further  thinks 
that  the  conveiition  providing  for  the  arbitration  should  have  been  the 
subject  of  frank  communication  and  friendly  consultation  witli  it  on  the 
part  of  the  signatory  powers. 

"  This  Government  will  not  interfere  to  i)revent  the  accomplishment  of 
such  arbitration,  nor  docs  it  undertake  to  express  any  opinion  as  to  the 
acceptance  by  His  INIajesty  the  King  of  Spain  of  the  invitation  which 
has  been  tendered  him.  But  it  deems  it  due  to  itself  and  resi»ectful  to 
Ilis  Majesty  to  inform  him  iu  advance  that  the  Government  of  the  United 
States,  where  either  it«  rights  or  interests  are  concerned,  will  not  hold 
itself  bound  by  any  arbitration,  where  it  has  not  been  consulted  on  the 
subject  or  method  of  arbitration,  and  has  had  no  voice  in  the  selection  of 
the  arbitrator.  Before  you  act  ui)on  the  instruction  now  given,  you  will 
inform  yourself  whether  such  invitation  has  been  or  is  about  to  be  ten- 
dered to  nis  IMajesty,  as  1  am  informed  the  invitation  has  not  yet  been 
extended  to  His  Majesty  the  King  of  the  Belgians,  and  circumstances 
may  therefore  delay,  if  not  entirely  i>revent,  the  reference  to  His  Maj- 
esty the  King  of  Spain.  Should  the  contingency  provided  for,  however, 
occur,  you  will  take  a  proper  o])portuuity  to  communicate  to  the  secre- 
tary for  foreign  aflairs  the  views  which  I  have  now  expressed. 

"In  doing  so  you  will  carefully  avoid  anything  in  the  nature  of  a  pro- 
test, and  will  say  that  your  communication  is  induced  by  the  anxiety  of 
this  Government  to  avoid  any  misundetstaudiug  or  seeming  disrespect 
of  the  decision  which  His  Majesty  may  reach  should  he  accei)t  the  arbi- 
tration." 

Mr.  Blaiue,  Sec.  of  State,  to  Mr.  Faircliild,  Jniic  '^5,  1881.     MSS.  Inst.,  Spahi ; 
For.  Eel.,  1881. 

Under  the  twelt^th  section  of  the  act  of  ISGl  (12  Stat.,  147),  tocariy  into 
etfect  the  convention  with  Costa  Rica  of  1800,  certified  copies  or  dupli- 
cates of  papers  tiled  in  the  State  De])artment,  and  not  translations,  must 

IIG 


CHAP.  VI.]  DENMARK.  [§  147. 

be  sabstilulc'd  by  the  commissiouer  of  Costa  Eica  for  tbe  originals  with- 
drawn by  him. 

10  Op.,  450,  Bates,  1863. 

As  to  treaty  of  Great  Britain  with  Houcluras  for  neutralizatiou  ofislLnms,  see 

supra,  ^  40. 
As  to  isthmus,  see  further  ivfra,  ^^  £87,  ff. 

(9)  Denmark. 

§  147. 

There  being  uo  express  provision  for  the  surrender  of  deserting  sea- 
men in  the  convention  of  182G,  between  the  United  States  and  Denmark, 
the  laws  of  the  United  States  for  the  apprehension  of  deserters  cannot  be 
applied  to  deserters  from  a  Danish  vessel. 

6  Op.,  148,  Gushing,  1853. 

As  to  the  negotiations  with  Denmark  in  reference  to  sound  dues,  see  supra,  ^  29. 
As  to  treaty  for  cession  of  Danish  West  Indies,  see  supra,  §  61a. 
As  to  the  circumstances  of  this  treaty,  see  Mr.  Janus  Partou's  pamphlet  on 
"  The  Danish  Islands,  are  we  bound  to  pay  (or  them  1 "  Boston,  1869. 

The  relations  of  Denmark  to  the  United  States,  ])rior  to  the  treaty  of 
1826,  are  discussed  in  1  Lyman's  Diplomacy  of  the  United  States,  chap, 
xii. 

"Quasi  relations  were  opened  with  Denmark  during  the  war  of  the 
devolution  by  Dr.  Franklin,  who,  on  the  22d  of  December,  1770,  in  a 
letter  to  i\r.  Berustorff,  minister  for  foreign  affairs  at  Copenhagen,  re- 
monstrated against  the  seizure  of  American  i)rizes  within  the  territorial 
Jurisdiction  of  the  King  of  Denmark.  This  question  lingered  into  the 
middle  of  the  present  century. 

"  On  the  27ih  of  February,  1783,  the  Danish  minister  for  foreign  af 
'iiiis  wrote  a  letter  to  Mr.  de  Walterstorf,  one  of  his  countrymen,  in 
which  he  said:  ^As  I  know  you  are  on  the  point  of  making  a  tour  to 
France,!  cannotomitrecommendingto  you  to  endeavor,  during  your  stay 
at  Paris,  to  gain  as  much  as  i)Ossible  the  confidence  and  esteem  of  Mr. 
Fianklin.  *  *  *  You  have  witnessed  the  satisfaction  with  which 
we  have  learned  the  glorious  issue  of  this  war  for  the  Unite<l  States  of 
Ameiica,  and  how  fully  we  are  persuaded  that  it  will  be  for  the  general 
interests  of  the  two  states  to  form,  as  soon  as  possible,  re(Mi)rocal  con- 
nections of  friendship  and  commerce.  Nothing  certainly  would  be  more 
ag;eeable  to  us  than  to  learn  by  your  letters  that  you  find  the  same  dis- 
l)Ositions  in  I\Ir.  Franklin.' 

"  De  Walterstorf  went  to  Paris  and  made  the  acquaintance  of  Frank- 
lin, and  assured  him  that  the  King  had  a  strong  desire  to  have  a  treaty 
of  liien<lship  and  commerce  with  tin;  United  States.  Franklin  informed 
JJobeit  Livingston  of  the  advances,  and  suggested  that  Congress  should 
send  the  necessary  powers  for  entering  itito  the  negotiations,  but  noth 
ing  (;ame  <jf  it.  Franklin  could  not  go  on  without  a  special  power,  and 
no  specia.l  power  cam(\ 

"  It  wiis  not  until  1820  that  a  commercial  convention  was  conclude<l 
at  Washington  with  Denmark,  'i'liis  was  {lansmitted  to  Congress  with 
I'lesich'ut  Adam.s's  mess;ig(^  at  tlie  lieginning  ol"  the.  second  s<'ssi<)n  of 
I  lie  ll».h  Congress. 

.1.  C.  B.  Davis,  Notes,  &c. 

117 


§  148.]  TREA.TIES.  [chap.  VI. 

(10)  FUAJCCE. 
(a)  TIIKATY  OF   1778. 

§  148. 

'I'lu'  tio.ity  of  alliance  and  that  ol"  amity  and  conimorcc  'woro.  both 
dated  on  February  (5,  1778.  The  treaty  of  alliance,  alter  recitinji:  that  in 
the  then  i)endin^  war  with  Great  Britain  Trance  and  the  United  States 
were  allies,  i)rovided  that  the  "essential  and  direct  end  of  the  ])resent 
<iefensive  alliance"  was  to  maintain  the  sovereijiinty  and  independence 
of  the  United  States.  This  sovereij;;nty  and  independence  the  Kin«j:  of 
France  jjuarantecd  to  tlie  United  States  forever.  The  United  States,  as 
an  equivalent,  fjuaranteed  to  the  Crown  of  Fiance  all  its  then  ])osse8- 
sions  in  the  West  India  Islands.  The  treaty  proceeded  as  follows  :  "In 
order  to  hx  more  i)recisely  the  sense  and  api)lication  of  the  preceding 
articles,  the  contracting  parties  declare  that  in  case  of  a  ruptuic  between 
France  and  Fngland  the  reciprocal  guarantee  declared  in  the  said  arti' 
cles  shall  have  its  full  force  and  effect  the  moment  such  war  shall  break 
out." 

The  treaty  of  amity  and  commerce  contained  the  Ibllowing  stipula- 
tions: 

As  between  the  parties  free  ships  were  to  make  free  goods,  except 
contraband  of  war,  of  which  a  limited  list  was  appended.  But  enemy's 
ships,  it  was  agreed,  were  to  make  enemy's  goods. 

In  war  the  menof-war  or  ])rivateers  of  one  ally  were  cmi:)0wered  to 
board  the  merchant  shi])s  of  the  other  concerning  which  there  was  just 
ground  of  suspicion.  But  upon  production  of  a  sea-letter  in  a  given 
form,  specified  at  length,  showing  that  the  vessel  was  not  infringing 
any  ])rovision  of  the  treaty,  she  was  at  once  to  be  released.  In  case  the 
sea-letter  disclosed  the  existence  of  contraband  goods,  the  cai)tors  were 
strictly  ibrbidden  to  break  up  the  hatches  or  disturb  the  cargo,  but 
were  peaceably  to  take  the  vessel  to  port  for  adjudication.  Ihe  existence 
of  contraband  goods  on  board  was  not  to  be  considered  as  infecting  the 
vessel  or  residue  of  the  cargo.  In  case  of  confiscation  of  such  goods, 
the  vessel,  with  the  residue  of  her  cargo,  was  to  be  permitted  to  pro 
ceed  upon  her  voyage. 

The  same  duties,  rights,  and  benefits  were  to  be  allowed  in  the  ports 
of  either  ally^  as  were  allowed  to  the  most  favored  nation. 

While  men-of-war  and  privateers  of  either  ally  were  to  be  entitled 
freely  to  enter  and  leave  the  ports  of  the  other  with  their  prizes,  men- 
of-war  and  privateers  of  an  enemy  of  either  ally  were  not  to  be  fitted 
out  in  the  ports  of  the  other,  nor  could  their  prizes  be  brought  into  such 
j)orts  for  sale.  Permission  was  to  be  given  to  the  latter  to  enter  the 
ports  of  either  ally  only  when  forced  in  by  necessity,  and  they  were  to 
be  obliged  to  retire  therefrom  as  soon  as  possible. 

The  opinion  of  Mr.  Jefferson,  given  to  the  President  on  April  18, 1793, 
assumes  that  the  guarantee  in  the  treaty  with  France  of  the  West  In- 
dia Islands  did  not  apply  until  we  were  called  upon  by  France,  and 
even  then  not  until  the  islands  were  invaded  or  immeiliately  threatened. 

7  Jeff.  Works,  GI5,  supra,  ^  133.     See  1  Lyman's  Diplomacy  of  the  U.  S.,  38,  /. 

Mr.  Jefferson,  in  a  letter  to  Mr.  Madison  of  May  19,  1793,  states  that 
when  Genet  presented  his  letters  of  credence,  he  said,  "Wo  know^  that 
under  present  circumstances  we  have  a  right  to  call  upon  you  for  the 

118 


CHAP.  IV.]  FRANCE:    TREATY    OF    177S.  [§  148. 

giiarautoe  of  our  islauds.  But  we  do  not  desire  it.  We  wish  you  to  do 
uotbing  but  what  is  for  3'our  own  good.  Cherish  your  own  i)eace  and 
prosperity." 

2  Raudall's  Jefferson,  140. 

Mr.  Hamilton,  in  the  essays  of  Pacificus,  published  in  exposition  of 
General  Washington's  "neutrality"  proclamation  of  1793,  took  the 
ground  that  the  "  guarantee"  clause  between  the  United  States  and 
France  was  personal  to  Louis  XVI,  and  did  not  apply  to  the  revolu- 
tionary governments  that  succeeded  the  deposition  of  that  monarch. 
"Louis  the  XVI,"  he  argued,  "  though  no  more  than  the  constitutional 
agent  of  the  nation,  had  at  the  time  the  sole  power  of  managing  its 
affairs,  the  legal  right  of  directing  its  will  and  its  force.  His  will  alone 
was  active,  that  of  the  nation  passive.  If  there  was  kindness  in  the 
decision,  demanding  a  return  of  good  willj  it  was  the  kindness  of  Louis 
XVI;  his  heart  was  the  depository  of  the  sentiment.  Let  the  genuine 
voice  of  nature,  then,  imperverted  by  political  subtleties,  pronounce 
ichetJier  the  aclcnoicledgmcnt,  icMch  may  he  due  for  that  Idndness,  can  he 
equitahly  transferred  from  him  to  others  who  had  no  share  in  the  decision. 
*  *  *  It  would  be  to  carry  the  principle  (of  permanency  of  treaty 
obligations)  too  far  and  render  it  intinitely  too  artificial  to  attribute  to 
it  the  effect  of  transforming  such  a  claim  from  the  prince  to  the  nation, 
by  way  of  opposition  and  contrast."  Mr.  Hamilton,  however,  in  main- 
taining this  position  stood  almost  alone.  It  has  been  held  by  a  series  of 
Administrations  that  our  obligations  to  foreign  powers,  as  well  as  our 
claims  against  them,  survive  the  dynasties  from  which  they  took  immedi- 
ate rise,  and  follow  through  every  change  the  nations  whom  these  dynas- 
ties at  the  time  represented.  As  a  general  rule,  a  treaty  is  not  abrogated 
by  a  revolution  in  the  country  of  one  of  the  contracting  parties. 

See  wfra,  §§  240,  248;  supra,  §  137. 

As  to  neutrality  duties  under  sucli  circumstances,  see  infra,  ^  401. 

Mr.  Madison,  under  the  name  of  Helvidius,  replied,  that  "  a  nation, 
by  exercising  the  right  of  changing  the  organ  of  its  will,  can  neither 
disengage  itself  from  the  obligations,  nor  forfeit  the  beuelit  of  its  treat- 
ies. This  is  a  truth  of  vast  importance,  and  happily  rests  with  suffi- 
cient firmness  on  its  own  authority.  To  silence  or  prevent  cavil  I 
insert,  however,  the  following  extract:  '  Since,  then,  such  a  treaty  (a 
treaty  not  personal  to  the  sovereign)  directly  relates  to  the  body  of  the 
state,  it  subsists  though  the  form  of  the  republic  happens  to  be 
changed,  and  though  it  should  be  even  transfornjed  into  a  monarchy — 
for  the  state  and  the  nation  are  always  the  same,  whatever  changes  are 
made  in  the  form  of  government — and  the  treaty  concluded  Avith  the 
nation  remains  in  force  as  long  as  the  nation  exists.'  ( Vatlel,  B.  II,  §  85.) 
Jt  follows  that  as  a  treaty,  notwithstanding  the  change  of  a  democratic 
government  into  a  monarchy,  continues  in  force  with  the  new  king,  in 
like  manner  if  a  monarchy  becomes  a  republic,  the  treaty  made  with  the 
king  does  not  expire  on  that  account,  'uidess  it  were  manifestly  i)er- 
sonal.'  (Burham,  part  iv,  c.  ix,  c.  IG.)  As  a  change  of  government, 
then,  makes  no  change  in  the  obligations  or  rights  of  the  party  to  a 
treaty,  it  is  clear  that  the  Executive  (of  the  United  States)  can  have 
no  more  riglit  to  suspend  or  ])revent  tlie  operation  of  a  treaty,  on  ac- 
count of  the  ciiange,  than  to  susp(;!id  or  prevent  the  operation  where  no 
Much  fliangc  has  liai)pened.    Nor  can  it  have  any  more  right  to  sus[)end 

119 


§  148.]  TREATIES.  [cnAr.  VI. 

the  opoiatiuii  of  a  treaty  in  luice  as  a  law,  tliaii  ti>  tsuspeiul  the  opi'ia- 
tiou  of  aiij'  other  hiw." 

See  supra,  ^  137;  infra,  '^  40"i.     See  ;ilso  I  Tucker's  Life  of  Ji-ll'cison.ll  I,  I'-il. 

The  17tli  article  of  the  treaty  of  alliance  with  France  is  discussed  in 
a  letter  from  Mr.  rickerin<i-,  Secri'tary  of  State,  to  >Mr.  Adet,  May  L*4, 
17!>G,  where  it  is  held  that  "  France  has  no  claim  of  ri^ht  to  sell  prizes 
in  the  ports  of  the  I'nited  States,  nor  the  latter  in  the  ports  of  France." 

MSS.  Notes,  For.  Lf<,'.'    1  Am.  St.  Pjip.  (I'or.  Kel.),  G.')l. 

The  corresi)ondence  in  IT'.UI  of  Mi-.  Fickeiin^j,  Secretary  of  State,  in 
resi)ect  to  our  relations  with  France,  is  ^iven  in  1  Am.  St.  Paj).  (For. 
]{el.),  ool)  /r.  It  involves  no  i)rinciple  of  international  law,  consistinj;, 
on  the  part  of  Mr.  Pickering,  principally  of  a  detailed  vindication  of  the 
actions  of  the  United  States  towards  France. 

"The  act  of  July  7,  17{)8,  annulling  the  treaties  with  France,  was  fol- 
lowed by  an  act  of  July  0,  1708,  which,  without  any  formal  declaration 
of  war,  not  oidy  authorized  the  I'lcsident  to  instruct  the  commanders 
of  public  armed  vessels  of  the  United  States  to  capture  any  l-'rench 
armed  vessel,  such  captured  vessel  with  lier  ai»i)arel,  guns,  and  apjjur- 
ti'uances,  with  the  goods  aiid  elfects  on  board  the  same,  being  French 
property,  to  be  brought  into  the  United  States,  and  proceeded  against 
and  C(»ndemned  as  forfeited  ;  but  the  President  was  authorized  to 
grant  special  commissions  to  private  armed  vessels  which  should  have 
the  same  liecnse  and  authority.     1  Stat.  L.,  578." 

Lawrence's  \Vbeatou  (ed.  1803),  COT.     Sees/ijn-fl,  ^^  l'.i7a,  l;)r;  ivj'ra,  \^  ■2-1'-,  as  to 
effect  of  act  of  1798. 

"  Treaties  of  foreign  offensive  and  defensive  alliance  are  contrary  to 
the  declared  policy  of  this  Government.  In  the  early  years  of  our  in- 
de[)endence  certain  compacts  of  this  nature  were  projected.  A  nota- 
ble instance  is  found  in  the  treaty  with  France,  concluded  in  1778,  dur 
iug  the  Kevolutionary  war,  by  the  11th  article  of  wliich  the  United 
States  guaranteed  the  French  possessions  in  this  hemisphere.  The 
fultillment  of  this  stipulation  proved  to  be  the  occasion  of  much  embar- 
rassment, and  eventually  of  serious  misunderstanding  between  the  two 
countries,  which  defeated  its  object  and  rendered  further  '  entangling 
alliances,'  as  Mr.  Jefferson  characterized  them, objectionable  to  the  ])eo- 
l)le  of  the  United  States." 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  Baker,  July  25, 1884.    MSS.  Inst.,  Vtncz. 
As  to  coustrnction  of  treaty  of  1778  in  respect   to  admission  of  rrcncli  ini/cs 
into  port,  see  iufra,  ^^S  391-r!9fi. 

The  treaty  between  the  United  States  and  France  of  1778  enabled 
the  subjects  of  France  to  purchase  and  hold  lands  in  the  United  States, 

Cliirac  v.  Chirac,  2  ^VLeal.,  2;")'.).     See  Carneal  r.  Banks,  10  ^Vlleat..  181 ;  also,  5 
Locl;j;e's  Hamilton.  4il. 

Under  the  nineteenth  article  of  the  treaty  (annulled  by  act  of  1798,  1 
Stat.  L.,  578),  a  French  privateer  has  a  right  to  make  repairs  in  our  |)orts, 
as  the  replacement  of  her  force  is  not  an  augmentation. 
Moodie  r.  The  Pliojbc  Anne,  3  Dall.,  31'J. 
1*_'0 


CHAP.  VI.]  FRANCE:    TREATY    OF    1778.  [§148. 

Marshals  are  not  required  by  law  to  execute  the  senteuce  of  a  Freuch 
consul  pronounced  under  the  12th  article  of  the  treaty  of  1788,  relating 
to  protests  of  masters,  &c. 
1  Op.,  43,  Bradford,  1794. 

The  refusal  of  a  district  judge  to  issue  a  warrant  under  the  ninth  arti- 
cle of  the  convention  between  France  and  the  United  States,  of  1788, 
cannot  be  interfered  with  by  the  Supreme  Court;  the  latter  having  no 
control  over  a  district  judge  exercising  legal  discretion. 

1  Op.,  C'S,  Bradford,  1795. 

For  the  effect  of  these  treaties  on  the  claims  of  citizens  of  the  United  States  on 

its  own  Government  for  spoliations  which  the  United  States  assnmed,  see 

infra,  §  248. 

The  seventh  article  of  the  treaty  of  1778  provided  that  ships  of  war 
and  i)rivateers  of  France  may  freely  carry  the  ships  and  goods  taken 
tioni  their  enemies,  into  the  ports  of  the  United  States,  without  being 
ol)liged  to  pay  any  fees  to  the  officers  of  the  admiralty,  or  any  other 
judges  ;  that  such  prizes  are  not  to  be  arrested  or  seized  when  they  en- 
ter into  the  ports  of  the  United  States  ;  that  the  oflicers  of  the  United 
States  shall  not  make  any  examination  concerning  the  lawfulness  of  the 
l)rizes  ;  that  they  may  depart  at  any  time,  and  carry  their  prizes  to  the 
places  expressed  in  their  commissions;  but  that,  on  the  contrary,  no 
.•shelter  or  refuge  shall  be  given,  in  the  ports  of  the  United  States,  to  such 
ships  as  had  been  made  prize  of  the  subjects,  people,  or  property  of 
France  ;  but  if  such  shall  come  in,  being  forced  by  stress  of  weather  or 
the  danger  of  the  sea,  all  proper  means  shall  be  vigorously  used  that 
they  go  out  and  retire  thence  as  soon  as  possible. 

Under  the  neutrality  act  of  1794  there  were  a  series  of  arrests  of 
French  vessels  in  United  States  ports,  the  validity  of  which  arrests 
were  adjudicated  by  the  admiralty  courts  in  such  ports.  Of  this  in- 
tervention of  the  judiciarj'  the  French  ministers  in  the  United  States 
comi)laiued,  holding  that  Freuch  vessels  in  the  United  States  were 
under  such  circumstances  entitled  to  come  and  go  as  they  pleased. 
But  the  reply  was  that  in  all  cases  of  disputed  rights,  the  judiciary 
must  be  appealed  to;  and  that  whether  such  a  right  as  that  claimed 
by  France  was  given  by  the  treaty  was  the  question  at  issue,  which, 
under  a  constitutional  system  like  that  of  the  United  States,  the 
courts  must,  for  municipal  purposes,  decide. 

As  to  the  rightfulness  of  this  position,  sec  supra,  §,  9. 

The  letters  of  the  Freuch  ministers,  with  the  accompanying  papers,  and  the 

replies  by  Mr.  Ran(lo]ili  and  Mr.  Pickering,  are  given   in   1   Am.   St.  Pap. 

(For.  Rel.),  ^jTyd  ff. 

"  On  the  29th  of  November,  1775,  Congress  appointed  a  '  committee 
of  secret  correspondence,'  whose  duty  it  would  be  to  correspond  with 
the  friends  of  the  colonies  in  other  parts  of  the  world.  On  the  3d  of 
•March,  1770,  this  committee  instructed  Silas  ])eane  to  ])roceed  to 
J'raiH^e  to  enter  into  communication  with  M.  de  Vergennes,  and  to  as- 
certain, if  i)Ossil)le,  '  whether,  if  the  colonies  should  be  forced  to  form 
themselves  into  an  iiuh'pendent  state,  France  would  *  ♦  *  (Mit<'r 
into  any  treaty  or  alliance  witii  tiiem  for  commerce  or  defense, or  bolli.' 
'1  iiese  instructions  were  signed  by  Dr.  l-'ranklin,  I>eiijainin  llarrisctn, 
•loliii  Dickinson.  Kobert  Morris,  and  .John -Fay,  an<l    the  practical  uis- 

121 


§  148.]  TREATIES.  [cHAr.  VI 

(loin  of  the  signers  is  displayed  in  the  first  instrnclion  thej^  contain: 
'  Wlien  you  conio  to  Paris  •  *  *  you  wi.l  be  introduced  to  a  set  of 
acquaintance,  all  friends  to  the  Americans.  By  conversing;  with  them 
you  will  have  a  <?ood  oi)portunity  of  acquirinjE:  Parisian  Fi-euch.' 

"On  the  17th  day  of  the  followinj;  ISepfeiiibcr,  nearly  two  years  prior 
to  the  adoption  of  the  Articles  of  Confederation,  'Congress  took  into 
considi'iat ion  the  plan  of  treaties  ti^  he  proposed  to  loreign  nations, 
with  the  anu'ndmenls  agiced  toby  the  coniinittt'c  of  the  whole,' and 
thereupon  adopted  a  i»lan  of  treaty  to  be  i)roi>os{'d  to  His  Most  (Miristian 
IMajesty  the  rrench  King,  which  will  be  found  in  the  secn't  Journal.' 

"This  remarkable  state  ])aper  contains  the  germ  (often  exj)ress('d  in 
the  identical  language)  of  many  of  the  provisions  of  subsecpu'iit  tiea- 
ties  of  the  United  States. 

"  In  one  respect  it  was  many  years  in  advance  of  provisions  actually 
incorporated  into  any  treaty.  Its  first  and  second  articles  stii)ulated 
that  the  citizens  of  each  country  in  the  i)orts  of  the  other  should  i)ay 
no  other  duties  or  imi)orts  than  the  natives  were  required  to  i)ay,  and 
should  enjoy  the  same  privileges,  immunities,  and  exemjitions  in  trade, 
navigation,  ami  commerce  which  natives  enjoyed,  and  the  twelfrh  aiti- 
cle  contemplated  a  similar  reciprocal  agreement  in  respect  of  some 
ex])orts.  It  was  not  until  after  the  peace  of  ISl-l  that  this  principle  of 
recii>rocity  was  incorporated  into  a  treaty  of  the  United  States. 

"  The  commissioners  who  were  originallj'  selected  by  the  Continental 
Congress  to  conclude  treaties  with  the Euroi)ean  powers  were  Dr.  Fiank- 
lin,  Silas  Deane,  and  Thomas  Jefferson.  Jeflerson  having  declined, 
Arthur  Lee  was  elected  in  his  jdace. 

"On  the  Gth  of  February,  1778,  these  commissioners  con<'huled  a 
treaty  of  alliance  and  a  treaty  of  amity  and  commerce  with  the  King  of 
France.  These  imi)ortant  acts  w^ere  followed  by  the  conclusion  of 
treaties  of  amity  and  commerce  with  the  Netherlands,  in  1782,  and  with 
Sweden  in  1783;  of  the  treaty  of  peace  with  Great  Britain  in  1783  (to 
which  the  names  of  Adams,  Franklin,  and  Jay  were  attached  under  a 
special  power) ;  of  a  treaty  of  amity  and  commerce  with  Prussia  in  1785 ; 
of  a  treaty  of  peace  and  friendship  with  INIorocco  in  1787,  and  of  a  con- 
sular convention  wi^h  France  in  1788. 

"In  regulating  the  commercial  and  political  relations  between  the 
United  States  and  other  i)owers  these  several  treaties  secured  the 
recognition  of  the  independence  of  the  United  States,  and  also  the 
assent  of  other  ])owers  to  many  important  ])rinciples,  some  of  which 
were  not  then  universally  recognized  as  constituting  part  of  the  public 
law  which  should  govern  the  intercourse  of  nations  with  each  other. 
It  is  not  diflicult  to  recognize  in  these  provisions  the  imi)ress  of  the 
statesmanlike  intelligence  and  humane  and  elevated  characters  of  the 
members  of  the  Continental  Congress,  and  of  the  American  plenipoten- 
tiaries who  negotiated  the  several  treaties. 

"  The  evils  of  war  were  lessened  by  agreements  that,  in  case  it  should 
break  out,  time  should  be  given  to  the  citizens  of  each  in  the  territories 
of  the  other  to  close  their  business  and  remove  their  properties;  or 
that,  should  differences  arise,  resort  should  not  be  had  to  force  until  a 
friendly  application  should  be  made  for  an  arrangement. 

"A  restraint  was  imposed  upon  private  war  by  provisions  forbidding 
the  citizens  of  either  power  to  accept  commissions  or  letters  of  marque 
from  enemies  of  the  other  power  when  at  war  ;  and  the  acceptance  of 
such  commissions  or  letters  was  declared  to  be  an  act  of  piracy,  which 
placed  the  oflendcr  beyond  the  claim  of  national  protection. 

122 


CHAP.  VI.]  FRANCE:    TREATY    OF    1778.  [§  148. 

"The  rights  of  neutrals  to  maintain  and  carry  on  tlieir  commerce  ami 
trade  on  the  liigii  seas  during  time  of  war  were  fully  recognized.  For 
this  purpose  articles  which  were  to  be  held  to  be  contraband  of  war 
were  expressly  defined  and  limited;  and  in  the  treaty  of  1785  with 
Prussia,  which  bears  the  signatures  of  John  Adams,  Dr.  Franklin,  and 
Jeflersou,  it  was  even  agreed  that  no  articles  should  be  deemed  cortra- 
band,  so  as  to  induce  coutiscatiou,  or  condemnation,  and  a  loss  of  prop- 
erty to  individuals.  It  was  further  agreed  that  free  ships  should  nuike 
free  goods  ;  and  that  neutral  goods  found  in  an  enemy's  ship  should  not 
be  confiscated  if  they  had  been  put  on  board  before  the  declaration  of 
war,  or  within  such  "short  period  thereafter  that  an  ignorance  of  the 
state  of  war  might  fairly  be  implied. 

"  Precise  rules  were  laid  down  to  be  observed  in  the  visit  of  neutral 
vessels  on  the  high  seas,  and  humane  regulations  were  made  respecting 
vessels  on  which  articles  contraband  of  war  should  be  discovered. 

"  'To  prevent  the  destruction  of  prisoners  of  war  by  sending  them 
into  distant  and  inclement  countries  or  by  crowding  them  into  close  and 
noxious  places,'  regulations  were  made  for  their  treatment ;  and  it  was 
agreed  that  women  and  children,  scholars,  and  cultivators,  '  all  otheis 
whose  occupations  are  for  the  common  subsistence  and  benefit  of  man- 
kind,' should  be  allowed  to  continue  their  respective  employments  in 
time  of  war;  that  merchant  and  trading  vessels  employed  in  rendering 
the  necessaries  of  human  life  more  easy  to  be  obtained,  should  be 
allowed  to  pass  unmolested  in  such  time;  and  that  no  commissions 
should  be  granted  to  private  armed  vessels. 

"The  power  of  the  new  nation  whose  existence  had  been  recognized 
by  these  treaties  to  regulate  and  control  its  commercial  relations  with 
foreign  powers  was  uniformly  asserted  in  this  series  of  treaties.  They 
placed  each  of  the  other  powers,  in  respect  of  commerce  and  navigation 
within  each  and  every  state,  en  the  footing  of  the  most  favored  nation; 
and  it  was  agreed  with  Prussia  that  the  ports  of  each  power  should  be 
open  to  the  other,  and  that  the  duties,  charges,  and  fees,  to  be  imposed 
by  eacli  upon  articles  the  growth,  i)roduce,  or  manufacture  of  the  other, 
should  be  only  such  as  should  be  paid  by  the  most  favored  nation. 

"  In  the  articles  affecting  the  relations  between  the  United  States  and 
the  several  States  these  early  treaties  asserted  the  nationality  of  the 
United  States  in  a  no  less  marked  manner. 

"  They  i)rohibited  the  exaction  in  any  State  of  the  droit  d'aubaiue 
or  other  similar  duty.  They  allowed  aliens  to  hold  personal  property 
and  to  dispose  of  it  by  testament,  donation,  or  otherwise,  and  to  suc- 
ceed to  it,  aiul  they  prohibited  the  exaction  in  such  case  by  any  State 
of  dues,  exce[»t  such  as  the  inhal)itants  of  the  country  were  subject  to. 
They  allowed  aliens,  without  obtaining  letters  of  naturalization,  to  in- 
herit real  estate  and  things  immovable  in  every  State,  but  in  such  case 
th(!  J'russian  ali<'n  was  reciuired  to  sell  the  real  estate  and  withdraw  the 
proceeds,  which  he  was  to  be  permitteil  to  do  without  molestation,  and 
in  case  oi'  witlulrawal  no  droit  de  detraction  was  to  Ite  cx.icted. 

"The;  right  to  aliens  to  frequent  the  coasts  and  countiies  of  each  and 
all  the  several  States,  and  to  reside  there  and  to  trade  in  all  sorts  of 
|)ro(luce,  manufactures,  and  merchandise  was  granted  l)y  the  National 
(iovernment,  and  the  States  wen^  ])rohil)ite(l  from  imposing  upon  such 
aliens  any  duties  or  (tharges  to  which  the  citizens  of  the  most  favored 
nation  were  not  made  subject.  Pcsident  aliens  were  also  assured 
against  Stat<;  legislation  to  |)rev<'nt  the  exercise  of  an  entire  and  jkm- 
li'ct  liberty  of  conscience  and  lie  performance  of  religious  woiship,  and, 

IL'.'J 


\N  148.]  TREATIES.  [chap.  VI. 

when  tlyiii^,  they  wlto  ftuaiaiitoid  \hv  li^ht  of  decent  bininl  and  un- 
disturbed rest  for  their  bodies. 

''The  consular  convention  eonchided  with  Trance  by  Jellerson  main- 
tained a  yet  wider  supremacy  lor  the  national  authority,  h  autlioi  ized 
French  consuls  to  administer  in  certain  cases  upon  the  estates  of  their 
<leceased  countrymen  in  the  several  States,  to  exercise  i)olii'C  over  all 
the  vessels  of  their  nation  in  whatever  Ameiican  i)ort  they  might  dis- 
charge their  functions,  to  ariest  the  ollicers  or  crews  of  such  vessels, 
to  reipiire  the  courts  to  aid  them  in  the  arrest  of  deserters,  and  it  even 
elevated  them  into  judges  an<l  authorized  them  to  determine  all  dill'cr- 
eiices  and  disi)utes  arising  between  their  countiymen  in  the  United 
States. 

"The  same  statesmen  contemplated  at  one  time  a  ])Ostal  convention 
between  France  and  the  United  States.  A  scheme  was  submitted  by 
the  French  minister,  after  considering  which  Jay  submitted  a  counter 
])roposal,  but  nothing  further  ai>])ears  to  have  been  done.  Had  the 
scheme  been  cairied  out  it  would  have  anticipated  by  half  a  century 
the  modern  international  i)ostal  convention  of  the  United  States. 

"The  several  treaties  and  conventions  thus  negotiated  have  served 
as  the  basis  or  model  of  many  of  the  commercial  and  general  conven- 
tions entered  into  by  the  United  States  since  the  adoption  of  the  Con 
stitution." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"  The  construction  put  by  President  Washington  on  the  agreement 
of  guarantee  contained  in  the  eleventh  article  of  the  treaty  of  1778  with 
France,  together  with  the  conclusion  of  the  treaty  of  1794  with  Eng- 
land, had  aftected  the  relations  of  the  two  countries  to  such  a  degree 
that  in  1798  Congress  had,  by  law,  assumed  to  exonerate  the  nation 
from  further  obligation  to  observe  the  treaties  with  France,  and  the 
Attorney-General  had  given  an  oflicial  opinion  that  there  was  a  state 
of  war.  The  treaty  of  1800  restored  the  good  relations,  but  in  the 
amendments  on  each  side  the  old  treaties  entirely  disai)peared.  The 
subject  will  be  further  considered  hereafter.  This  treaty,  although  con- 
cluded during  the  administration  of  President  Adams,  was  tinally  ]»r()- 
claimed  l>y  Jefferson  after  he  became  l*resident." 

Mr.  .1.  C.  B.  Davis,  Notes,  &e.     As  to  eflect  of  this  guarautee,  see  prior  amhori- 
tii's  in  this  section  ;  and  see,  also,  siipra,  ^  137a;  infra,  ^^  240,  248. 

•'  Mr.  Trescot  remarks,  in  reference  to  our  position  at  the  commence- 
ment of  the  wars  growing  out  of  the  French  Ilevolution,  'There  were, 
two  courses  open  to  the  United  States, — either  to  give  way  to  the  pressure 
of  circumstances  ami  join  one  or  other  of  the  contending  parties  or  to 
declare  the  I'rench  treaties  null  and  void,  and,  without  ai)proaching  Eng 
land,  hold  themselves  free  and  neutral.  After  a  long  and  conscientious 
deliberation.  General  Washington  determined  ui)on  a  course  which  was 
neither  one  nor  the  other,  and  which,  notwithstanding  its  fair  and  honest 
si)irit,  combined,  it  must  beacknowicged,  thcdiflicultiesof  both.  Here- 
solved  to  maintain  neutrality  and  the  French  treaties  together.'  (Uiplo 
matic  llistory  of  the  Administrations  of  Wasliington  and  Adams,  p,  l.i8.) 
The  exoneration  of  the  United  States  from  the  duties  imposed  by  the 
French  treaties  would  seem  to  have  been  far  from  clear,  even  in  the  minds 
of  those  who  had  maintained  the  right,  under  the  circumstances,  of  our 
being  at  liberty  to  absolve  ourselves  from  the  obligation  of  them.  ]\Ir. 
Hamilton,  not  withstanding  the  ad  vice  helad  given  as  a  memberof  Wasli- 


CHAP.  VI.]  FRANCE:    TEEATY    OF    1778.  [§  148. 

ingtou's  Cabinet  iu  1793,  iiBtl  his  subsequent  repugnance  in  1799  to  any 
lenewal  of  negotiations  with  a  revolutionary  government  iu  France,  in 
1797,  in  a  letter  to  his  successor  in  office,  advocated  an  extraordinary 
mission,  and  which,  according  to  him,  '  ought  to  embrace  a  character  in 
whom  France  and  the  opposition  have  full  confidence.'  The  motive 
assigned  was,  'AVe  may  remould  our  treaties.  We  may  agree  to  put 
France  on  the  same  footing  as  Great  Britain  by  our  treaty  with  her. 
^Ve  may  also  liquidate,  with  a  view  to  future  wars,  the  import  of  the 
mutual  guarantee  in  the  treaty  of  alliance,  substituting  specific  succors 
and  defining  the  casus  feeder  is.  But  this  last  may  or  may  not  be  done, 
though  with  me  it  is  a  favorite  object.'  (Gibb's  Memoirs  of  the  admin- 
istrations of  Washington  and  Adams,  vol.  i,  p.  490.  Mr.  Hamilton  to 
Mr.  Wolcott,  Ai)r.  5,  1797.  G.  F.  Adams,  Works  of  John  Adams,  vol. 
X,  p.  254.) 

"  The  embarrassments  arising  from  the  special  privileges  accorded  to 
France,  referred  to  in  the  text,  were  much  increased  by  the  insertion  of 
similar  provisions  in  the  treaty  of  1794,  with  England,  and  by  the  meas- 
ures adopted  by  Congress  to  abrogate  the  French  treaties,  after  the 
offensive  termination,  iu  1798,  of  the  mission  of  General  Pinckney,  with 
whom  were  associated  Mr.  (afterwards  chief  justice)  .Marshall  and  Mr. 
Gerry.  In  order  to  comprehend  fully  the  subsequent  negotiations  be- 
tween Ellsworth,  Davie,  and  IMuiray,  and  Joseph  Bonaparte,  Fleurieu, 
and  Eoederer,  which  resulted  in  the  convention  of  September  30, 1800, 
•the  following  facts,  Mr.  Trescot  says,  'must  always  be  borne  in  mind: 
(1)  That  by  the  11th  article  of  the  treaty  of  alliance  France  and  the 
United  States  had  mutually  guaranteed  their  American  i)Ossessions, 
and  that  by  the  17th  and  22d  articles  of  the  treaty  of  commerce  of 
1778  they  granted  to  each  other  the  mutual  and  exclusive  X)rivilege  of 
taking  their  prizes  and  privateers  into  each  other's  ports.  (2)  That 
by  the  (24th  and  25th  articles  of  the)  treaty  of  1794  with  England  this 
same  exclusive  privilege  had  been  granted  by  the  United  States  to 
that  power;  but  That  owing  to  the  priority  of  the  French  treaty,  and 
the  exclusive  character  of  the  privilege,  it  remained  in  abeyance,  as  far 
as  England  was  concerned,  so  long  as  the  French  treaty  lasted.  (3) 
That  by  the  act  of  July,  1798,  the  United  States  Government  had  can- 
celed tlie  French  treaties  of  1778,  and  thus  given  priority  and  activity 
to  the  exclusive  privilege  stipulated  in  the  treaty  with  England.  (Dip- 
lomatic History,  etc.,  p.  208.) 

'•  Thedraftof  the  convention  presented  by  theAmerican  ])lenii)oteniia- 
lies  contained  an  article  for  a  commission  to  ascertain  indemnities  mu- 
tually due,  and  it  provided  iu  reference  to  the  commissioners  that  Mhey 
shall  decide  the'claims  in  question  according  to  the  original  merits  of  the 
several  cases,  and  to  justice,  equity,  and  the  law  of  nations,  and  in  all 
casesof  complaint  existing  prior  to  the  7th  of  July  1798  (the  date  of  the 
cat  of  Congress  cancelling  the  treaties),  accordingto  the  treaties  and  con- 
Hular  convention  then  existing  between  France  and  the  United  States. 

"  That  France  should  admit  the  validity  of  the  unilateral  abroga- 
ti(Ui  of  the  treaties,  except  as  an  a(;t  of  war,  which  of  itself  would  (lis- 
cliarge  all  reclamations  for  their  ]»revious  violation,  could  scarcely  have 
been  expected  on  the  part  of  the  United  States.  JMuch  less  could  it 
have  be<*n  supposed  that  if  she  stipulated  to  n)ake  compensations  for 
infractions  of  conventional  obligations,  France  would  recognize  those 
altered  relations,  ])ro(es.s<'(lIy  induced  by  a  disregard  of  our  reclama- 
ti<ins,  which  transferred  to  England  the  special  ])rivileges  that  the 
treaties  of  the  revolution  secured  to  her.     'Tiie  French  plenipotentia- 

125 


§  148.]  TREATIES.  [chap.  VI 

ries  would  coiisout  to  tlic  »l)ro<;ation  of  the  old  treaties  ;  but  us  such  au 
abrof;ati()ii  eonld  only  bt^  tho  result  of  war,  tliey  were  oblij^ed  to  con- 
sider the  action  of  the  United  States  ])recedinj;',  as  e(iuivalent  to  war, 
and  a  new  treaty,  in  necessary  consequenee,  a  treaty  of  peace,  lu 
such  case  the  (piestion  of  iiuleninity  must  b(^  laid  aside,  because  a  war 
extiiiiiuished  all  neutral  oblijiations;  eaeh  party  had  taken  the  remedy 
of  complaints  into  its  own  hands,  and  a  treaty  of  peace  was  a  fresh 
start  upon  such  a  new  basis  as  their  respective  positions  warranted 
them  in  i)roi)osinj;" ;  and  therefore  they  ottered  to  the  American  miu- 
isters  either  the  abro;ial ion  of  the  ohl  treaties  without  indemnity  or 
indemnity  with  the  old  treaties.  And  they  added  that,  in  any  new 
treaty,  while  France  would  cheerfully  abandon  her  privilege  of  exclu- 
sive asylum,  she  would  not  consent  to  occupy  an  inferior  position  to 
any  other  nation.     [Ibid.,  p.  215.)"' 

Lawirnci-'s  \VJieaton  (cd.  1803),  pp.  712-714.  For  a  discussion  of  the  obli^sitious 
imposed  on  tlio  United  States  by  the  treaty  of  1778  with  Franco,  see  ',i  Fhilli. 
Int.  Law  (3  cd.),  228;  1  Lyman's  Diplomacy  of  the  U.  S.,  38  /.;  1  Ran- 
dall's Jelferson,  chap.  x\v,ff. 

"The  treaties  of  177S  were  two  in  number,  that  of  '  alliance,'  the  one 
of  most  immediate,  and,  in  fact,  at  the  time,  of  absolutely  vital  imi)or- 
tance  to  the  United  States;  and  that  of  'amity  and  commerce.'  While 
separate  instruments,  they  were  concluded  upon  the  same  day,  were  the 
result  of  the  same  negotiation,  signed  by  the  same  plenipotentiaries,  and 
are,  in  diplomatic  effect,  one  instrument.  The  treaty  of  alliance,  after 
referring  to  its  companion,  the  treaty  of  commerce,  states  that  the  two 
])owers  'have  thought  it  necessary  to  take  into  consideration  the  means 
of  strengthening  the  engagements  therein  made,'  and  of  'rendering 
them  useful  to  the  safety  and  tranquillity  of  the  two  parties;  particu- 
larly in  case  Great  Britain,  in  resentment  of  that  connection  *  *  * 
should  break  the  i)eace  with  France,  either  by  direct  hostilities  or  by 
hindering  her  commerce  and  navigation  in  a  manner  contrary  to  the 
rights  of  nations  and  the  peace  subsisting  between  the  two  crowns;'  and 
two  ])0wer8  resolving  in  such  case  to  join  against  the  common  enemy 
determined  upon  the  treaty,  which  provided  that  if  war  should  break 
out  between  France  and  Great  Britain  during  the  war  for  America  inde- 
])endence,  each  party  should  aid  the  other,  according  to  the  exigencies, 
as  good  and  faithful  allies;  that  the  essential  end  of  the  alliance,  called 
a  'defensive'  alliance,  was  the  'liberty,  sovereignty,  and  independence, 
absolute  and  unlimited,  of  the  United  States.' 

"Provision  was  also  made  for  a  possible  conquest  of  Canada,  Bermuda, 
and  the  islands  in  the  Gulf  of  Mexico,  and  each  party  was  forbidden  to 
conclude  a  truce  or  peace  with  Great  Britain  without  the  consent  of  the 
(jther.  It  was  further  agreed  that  neither  should  lay  down  arms  until  the 
independence  of  the  United  States  was  assured  by  treaties  terminating 
the  war.  jSTo  claim  was  to  be  made  by  one  against  the  other  for  comj'en- 
sation,  whatever  the  result,  and  then  came  the  guarantee,  out  of  which 
afterwards  arose  so  serious  complications,  national  and  international, 
which  not  only  drove  our  country,  weak  and  exhausted  from  seven  years' 
strife,  to  the  verge  of  war,  but  also  stirred  up  at  home  a  bitter  political 
contest,  carried  even  into  the  intimacy  of  a  l^resident's  Cabinet. 

"These  stipulations  are  coiitain(>d  in  the  eleventh  and  twelfth  articles, 
whereby  each  party  guaranteed  'forever  against  all  other  powers' — 
first,  the  United  States  to  France:  All  the  possessions  of  France  in 
America  as  well  as  those  it  might  acquire  by  any  future  treaty  of  peace; 

126 


CHAP.  VI.]  FRANCE:    TREATY    OF    1778.  [§  148. 

second,  Fiauce  to  the  United  States:  'Their  liberty,  sovereignty,  and 
independence  absolute  and  unlimited,'  together  with  their  possessions 
and  their  additions  or  conquests  made  from  Great  Britain  during  the 
war.  Such,  in  substance,  was  the  treaty  of  alliance;  it  has  never  been 
contended  so  far  as  known  to  us  that  France  did  not  fulfill  the  require- 
ments which  this  instrument  imposed  upon  her  during  our  contest  with 
Great  Britain. 

"The  provisions  of  the  other  agreement,  the  treaty  of  commerce,  of 
importance  in  this  case  (alluding  to  them  briefly)  required  protection  of 
merchantmen;  required  ships  of  war  or  privateers  of  the  one  party  to 
do  no  injury  to  the  other;  and  provided  especial,  purely  exceptional,  and 
exclusive  privileges  by  each  party  to  the  other  as  to  ships  of  war  and 
privateers  briuging  prizes  into  port. 

''The  treaty  of  alliance  was  not  one-sided,  for  it  imposed  upon  the 
United  States  a  possible  duty  and  burden  in  the  fulfillment  of  the  guar- 
antee of  French  possessions  in  America  'forever'  against  all  other 
powers.     *     *     * 

''We  had  promised  France  that  their  shij^s  of  war  and  privateers  might 
freely  carry  whithersoever  they  pleased  the  ships  and  goods  taken  from 
their  enemies;  that  these  prizes  should  not  be  arrested  or  seized,  or  ex- 
amined, or  searched  in  our  ports,  but  might  at  any  time  freely  leave, 
while  no  shelter  or  refuge  was  to  be  given  to  vessels  having  made  prize 
of  her  'subjects,  people,  or  property.'  (Article  17,  treaty  of  commerce, 
1778.)  The  United  States  bad  thus  given  France,  and  for  consideration, 
not  only  a  valuable,  but  an  exclusive  right;  yet  the  Jay  treaty  in  the 
twenty-fifth  article  gave  these  same  privileges  to  Great  Britain,  exclud- 
ing all  vessels  which  'should  have  made  prize  upon  [her]  subjects.' 

"The  conflict  of  the  treaties  is  evident  and  of  course  was  fully  appre- 
ciated at  the  time."    As  to  Jay's  Treaty,  see  infra^  §  150  a. 

"While  the  Jay  treaty  was  concluded  in  November,  1794,  its  ratifica- 
tions were  not  exchanged  until  October  the  following  year,  and  mean- 
time the  British  orders  in  council  directing  seizure  of  our  vessels  and 
provisions  bound  to  France  were  so  enforced  as  to  call  forth  from  Mr. 
Randolph,  then  Secretary  of  State,  the  warning,  as  late  as  July,  1795, 
that  the  Jay  treaty  had  not  yet  been  ratified  by  the  President;  'the 
late  British  order  in  council  for  seizing  provisions  is  a  weighty  obstacle 
to  ratification.  I  do  not  suppose  that  such  an  attempt  to  starve  France 
will  be  countenanced.'  (Foreign  Eelations,  vol.  1,  p  719.)  Every  en 
deavor  was  made  by  the  United  States  to  secure  a  repeal  of  the  ad- 
miralty order,  but  without  success,  and  finally  our  minister  in  London, 
Mr.  Adams,  was  instructed  that  if,  after  every  prudent  eflbrt,  he  found 
it  could  not  be  removed,  its  continuance  was  not  to  be  an  obstacle  to  the 
exchange  of  ratifications.  The  order  was  not  removed  or  modified; 
nevertheless  ratifications  of  the  treaty  were  exchanged  the  following 
October.     *     *     * 

"Long  prior  to  this,  Jefferson,  while  in  Paris,  had  told  the  British 
minister  there,  during  a  discussion  as  to  the  effect  of  the  treaties  of 
1778,  in  ca.^e  of  war  between  France  and  Great  Britain,  and  told  him 
•frankly  and  without  hesitation,' that  tlie  dispositions  of  the  United 
States  would  then  be  neutral,  and  that  this  would  be  to  the  interest 
of  both  i)oweis,  because  it  would  relieve  both  froui  all  anxiety  as  to 
leediiig  liieir  West  India  Islands;  that  l^ngland,  too,  by  suHeiing  us 
to  remain  so,  would  avoid  a  heavy  land  war  ou  our  continent,  which 

127 


§  148rt.]  TREATIES.  [chap.  VI. 

might  very  nmcli  ciipple  Ikt  ])ro{'C0(linjis  clscwiune;  that  our  treaty 
[with  FniiK'e]  iiuU'cil,  oblij^cd  us  to  rocrive  into  our  ])ort.s  the  a'uied 
vessels  ol"  I'^ranci'.  with  their  prizes,  and  to  leluse  admission  to  the  jirizes 
nunle  on  her  by  her  enemies;  that  there  was  a  elause.  also,  by  whieh  we 
{guaranteed  to  France  her  American  i)ossessions,  and  which  miKht  i)er 
hajjs  force  us  into  the  war  if  these  weie  attacl<e«l.  'Then  it  will  be  war,' 
said  the  minister,  'I'or  the;,  will  assuredly  be  attacked.' 

"■In  1780  another  American  minister  informed  the  Imi^HsIi  seeietary 
of  state  for  lbrei<in  affairs  'that  in  a  war  between  Great  Britain  and  the 
House  of  liourbon  (a  thin<;"  which  mtist  hapju'ii  at  some  time)  we  [tin; 
Tnited  States]  can  jiive  the  West  India  Islands  to  whom  we  i)lease. 
without  engafiinjx  in  the  war  ourselves,  and  our  conduct  must  be  gov 
i-rned  by  our  interest' (Wait's  Am.  St.  I'aj) ,  vol.  10,  1)7) ;  and  this  in 
lace  of  a  treaty  coiichided  but  twelve  years  before,  wherein  we  i)ledged 
ourselves  to  a  guarantee  Horever'  of  the  possessions  in  America  o(  thai 
very  House  of  Donrbon.  ICarly  in  17!>I  ^Ir.  .IclVerson,  then  Secretary  ol 
State,  said,  as  to  this  subject,  that  he  had  no  doubt  we  should  interpose 
at  the  proj)er  time  'and  declare  both  to  England  ai^I  France  that  these 
islands  are  to  rest  with  France,  and  that  we  will  make  a  common  cause 
with  the  latter  for  that  object.'  (Jeflerson  to  Madison,  April  3,  1794. 
Jeir.  Works,  vol.  4,  103.)" 

Opinion  of  Judge  John  Duvis  on  rrencli  spoliation.s.     C.  Cls  ,  Maj'  17,  1?(8G 

See  i))fra,  §  248. 
As  to  annulling  treaties  l>y  Icgi.slation,  sco  sujn-a,  '^  l:>8;  Ai>i).,  vol.  iii,  ^\  :i7U. 

(b)  CONVKNTIOX    OK    IdOO. 

§  148ft. 

As  is  elsewhere  noticed  {sKpra,  §§  78,  81,  83),  Mr.  Ad.uiis,  in  February, 
171H),  after  the  rupture  with  France  consequent  on  the  termination  of  the 
mission  of  Messrs.  Pinckuey,  Marshall  and  Gerry  in  31arch,  1708,  {.supra, 
§85,)  nominated  as  ministers  extraordinary  to  Fiance  (Jhief-Justice  IClls 
worth,  Governor  Uavie,  of  North  Carolina,  and  3Ir.  ^luiray,  then  minis 
ter  at  The  Hague.  These  envoys  found  Xapoleon  in  full  power  as  Firsr 
Consul.  The  relations  of  the  countries  were  greatly  changed  iiom  what 
they  had  been  on  the  i)receding  mission.  The  prior  treaty  of  alliance 
had,  by  act  of  Congress,  been  dissolved,  so  far  as  concerned  the  United 
States  municipally;  and  the  ministers,  instead  of  coming  to  Paris  on  a 
treaty  basis,  api)eared  before  the  French  Government  simply  as  claim 
ing,  on  the  basis  of  the  law  of  nations,  indemnity  lor  injuries  sustained 
from  France,  which  indemnity,  however,  could  scarcely  be  insisted  on 
without  tendering  something  in  the  nature  of  an  equivalent.  The 
treaty  of  alliance,  as  has  just  been  seen,  secured- to  France  several  im- 
l)ortant  advantages:  (1)  A  guarantee  by  the  United  States  of  the 
French-American  islands,  which  guarantee,  however,  it  was  claimed 
that  the  Directory  had  waived  by  its  ministers  in  the  United  States 
(L*)  The  mutual  and  exclusive  privilege  of  taking  prizes  and  privateers 
into  each  others  ports.  This  i)rivilege  was  afterwards  granted  to  Eng- 
land by  the  treaty  of  1704,  but,  so  far  as  concerns  England,  it  was 
claimed  to  remain  iu  abeyance,  as  long  as  the  French  treaty  was  in 
force.  But  by  the  act  of  July,  1798,  it  was  alleged,  the  exclusive  priv- 
ileges given  in  the  British  treaty  of  1794,  came  into  effect,  as  a  conse- 
quence of  the  abrogating  by  that  act  of  the  French  treaty  ot  1778. 
The  American  envoys  were  instructed  as  follows  : 

128 


CHAP.  VI.]  FAANCE:    CONVENTION    OF    1800.  [§  148a, 

''  The  following  poiuts  are  to  be  consideretl  iiltimated  : 

"  1.  That  au  article  be  iusertetl  for  establishing  a  board,  with  suitable 
powers,  to  hear  and  determine  the  claims  of  our  citizens  for  the  causes 
hereinbefore  expressed,  and  binding  France  to  i)ay  or  secure  payment 
of  the  sums  which  shall  be  awarded. 

"2.  That  the  treaties  and  consular  convention,  declared  to  be  no 
longer  obligatory  by  act  of  Congress,  be  not,  in  whole  or  in  part,  re- 
vived by  the  new  treaty  ;  but  that  all  engagements  to  which  the  United 
States  are  to  become  parties  be  specified  in  the  new  treaty. 

"  3.  That  no  guarantee  of  the  whole  or  any  jjart  of  the  dominions  of 
France  be  stipulated,  nor  any  engagement  made  in  the  nature  of  an 
{illiance. 

"  4.  That  no  aid  or  loan  be  promised  in  any  form  whatever. 

"  5.  That  no  engagement  be  made  inconsistent  with  the  obligations 
of  any  prior  treaty,  and,  as  it  may  respect  our  treaty  with  Great  Britain, 
the  instruction  herein  marked  XXI  is  to  be  particularly  observed. 

"  G.  That  no  stipulation  be  made  granting  powers  to  consuls  or  others 
under  color  of  which  tribunals  can  be  established  within  our  jurisdic- 
tion, or  personal  privileges  be  claimed  by  Frenchmen,  incompatible  with 
the  complete  sovereignty  of  the  United  States  in  matters  of  policy, 
commerce,  and  government. 

"  7.  That  the  duration  of  the  proiDOsed  treaty  be  limited  to  twelve  years, 
at  furthest,  from  the  day  of  the  exchange  of  the  ratifications,  with  the 
exceptions  respecting  its  permanence  in  certain  cases  specified  under  the 
instructions  marked  XXX''  (in  reference  to  the  settlement  of  claims). 

The  positions  taken  by  the  American  envoys,  on  the  question  of  the 
abrogation  of  the  treaty  of  alliance,  were  as  follows: 

1.  That  a  treaty  being  a  mutual  compact,  its  violation  by  one  party 
Justified  its  abrogation  by  the  other;  and  2,  "That  it  had  become  im- 
l)ossible  for  the  United  States  tosa,ve  their  commerce  from  the  dei)reda- 
tions  of  the  French  cruisers,  but  by  resorting  to  defensive  measures ; 
and  that,  as  by  their  constitution  existing  treaties  were  the  supreme  law 
of  the  land,  and  the  judicial  department,  who  must  be  governed  by 
them,  is  not  under  the  control  of  the  executive  or  legislative,  it  was  also 
impossible  for  tbem  to  legalize  defensive  measures,  incompatible  with 
the  French  treaties,  while  they  continued  to  exist.  Then  it  was  they 
were  formally  renounced,  and  from  that  renunciation,  there  resulted, 
necessarily,  a  priority  in  favor  of  the  British  treaty,  as  to  the  exclusive 
asylum  for  i)rivateers  and  prizes." 

To  these  arguments  the  French  Government  replied  with  great  force, 
••  that,  when,  on  the  one  hand,  Congress  declare  that  France  has  con- 
travened these  treaties,  and  that  the  United  States  are  released  from 
their  stii)ulations ;  and  when  France  declares  that  she  has  conformed 
to  these  treaties,  that  she  desires  their  execution,  and  that  the  United 
States  alone  have  infringed  them,  where  is  the  tribunal  or  law  to  enforce 
tlie  exoneration  in  i)reference  to  the  execution  ? 

"So  long  as  a  dillerence  exists  between  the  two  contracting  parties, 
respecting  the  existence  or  abrogation  of  a  treaty,  no  right  or  benefit 
can  result  to  a  tliird  party  from  the  abrogation  contended  for  by  one. 

"  If  France  had  declared  the  treaties  annulled,  and  the  United  States 
bad  maintained  their  \alidity,  England  would  have  no  ground  for  say- 
ing to  America,  'we  succeed  to  the  rights  of  France.'  *  *  *  If  one 
of  two  contracting  j)arti<'S  is  at  liberty,  whenever  he  may  i)lease,  to 
cancel  his  obligations  in  virtue  of  his  own  judgment  concerning  fa(;ts 
or  men  or  things,  no  binding  for(;e  can  l)e  attached  to  treaties,  and  the 

S.  .Mis.  Hii'— VOL.  II {)  120 


§  148a.]  TREATIES.  [CUAP.  VI. 

term  itself  should  be  erased  from  every  laiijiiin..!ie.  If  the  rijjiht  of  aii- 
terioiity  can  he  (kvstroyed  to  thei)n'jiidiee  of  the  nation  that  jjosscsses 
it,  by  the  sole  ac;t  of  one  of  the  parties  by  whom  that  ri^ht  has  been 
recojiiii/i'd,  it  must  be  aeknowlcd^^cd  as  a  ])riM(ii>lr,  that  the  nation 
makin<i  the  .second  treaty  converts  the  one  wiih  wliom  she  fust  con- 
tracted into  an  enemy,  and  that  she  may  be  certain  of  beinjj:  (k'spoik'd 
by  that  enemy  whenever  the  time  may  be  projjitious  for  an  ojjen  expla- 
nation."' 

The  negotiations  preceding  tho  convention  of  IdOO  are  given  in  1  l-yiniin's  Di- 
plomacy of  U.  S.,  chap.  viii. 

As  to  annulling  by  statute,  see  supra,  $  138. 

As  is  argued  by  Mr.  Trescot,  in  his  volume  on  American  Diplo- 
matic History  (Boston,  1857),  the  first  of  these  i)ositi(ms  cannot  be  sus- 
tained, excei)t  as  to  stipulations  which  are  recii)rocally  depend«'nt.  The 
second  ])osition,  also,  is  inconsistent  with  the  established  rule  that  tiio 
Executive  of  a  Government  cannot  set  up  its  own  domestic  arraiij^e- 
nients  to  sujjport  a  di))lon)atic  claim.  The  I'^rench  ministers  in  reply 
said  they  wouUl  consent  to  the  abrogation  of  the  treaty  of  alliance  and 
the  consequent  commercial  treaty  if  such  abrogation  was  claimed  as  a 
result  of  war ;  but  in  such  case  tlie  claims  for  imlemnity  could  no  longer 
be  niaintained,  since  war  extinguishes  claims  as  well  as  treaties.  The 
American  envoys,  de])arting  in  this  respect  from  their  instructions,  then 
agreed  to  surrender  their  claims  for  indemnity  as  an  equivalent  for  tiie 
French  surrender  of  the  i)rivileges  given  in  the  ])rior  treaties.  The 
French  ministers,  however,  refused  to  assent  to  such  a  surrender  as  long 
as  the  United  States  gave  to  Great  Britain  exclusive  privileges  in  the 
ports  of  the  United  States.  In  order  to  avoid  this  new  difiticulty,  they 
proposed  a  temporary  convention,  to  consist  of  stipulations  which  are 
thus  condensed  by  Mr.  Trescot : 

"  1.  That  the  parties,  not  being  able  at  i)resent  to  agree  respecting 
the  former  treaties  ami  indemnity,  these  subjects  should  be  jjostponed 
for  future  negotiation,  and,  in  the  mean  time,  that  the  said  treaties 
should  have  no  operation. 

"  2.  The  i)arties  shall  abstain  from  all  unfriendly  acts,  their  commerce 
shall  be  free,  and  debts  sh;dl  be  recoverable  in  the  same  manner  as  if 
no  misunderstanding  had  intervened. 

"  3.  P)  operty  captured  and  not  yet  deiinitely  condemned,  or  which 
may  be  captured  before  the  exchange  of  ratifications,  shall  be  mutually 
restored.     Proofs  of  ownership  to  be  specified  in  the  convention. 

"  4.  Some  i)rovisional  regulations  to  be  made  to  i)revent  abuses  and 
disputes  in  future  cases  of  capture." 

These  sli])ulations  being  accej)ted  as  the  basis  of  a  convention,  a  tech- 
nical difliculty  was  interi)osed  by  the  French  negotiators  in  a  note  of 
September  2'J,  1800,  in  which  they  saul : 

"  The  ministers  of  France  insist,  in  relation  to  the  treaty,  upon  one  of 
three  things : 

"  Either  that  the  treaty  shall  be  signed  in  the  French  language  only, 
without  any  reservation,  the  mode  pursued  by  the  consular  convention 
of  1788  l)erween  France  and  the  United  States,  and  by  the  treaty  of  178G 
between  France  and  England  ; 

"  Or,  that  it  shall  be  signed  in  the  French  language  only,  and  that  a 
separate  article  (similar  to  the  one  at  the  close  of  the  treaty  of  1783  be- 
|:ween  France  and  England)  .^hall  stipulate  that  the  French  language 

130 


CHAP.  VI.]  FEANCE:   convention   of  1800.  [§  148a. 

used  in  the  treaty  shall  not  constitute  a  precedent,  nor  operate  to  the 
prejudice  of  either  of  the  contracting  parties  ; 

"  Or,  finally,  that  it  shall  be  signed  in  the  French  and  English  lan- 
guages, accompanied  by  the  following  declaration,  conforming  to  the  one 
at  the  end  of  the  treaty  of  alliance  and  the  treaty  of  commerce  of  1788 : 
'In  faith  whereof  the  respective  plenipotentiaries  have  signed  the  above 
articles,  both  in  the  French  and  English  languages;  declaring,  never- 
theless, that  the  present  treaty  was  originally  written  and  concluded 
in  the  French  language.'" 

On  September  30, 1800,  the  convention  was  signed,  as  noticed  above, 
by  the  negotiators  of  both  contracting  parties.  The  material  articles  are 
articles  are  as  follows: 

"  Aet.  II.  The  ministers  plenipotentiary  of  the  two  parties,  not  being 
able  to  agree  at  present  respecting  the  treaty  of  alliance  of  6th  Feb- 
ruary, 1778,  the  treaty  of  amity  and  commerce  of  the  same  date,  and 
the  convention  of  14th  of  November,  1788,  nor  upon  the  indemnities 
mutuallj^  due  or  claimed,  the  parties  will  negotiate  further  on  these 
subjects  at  a  convenient  time,  and  until  they  have  agreed  upon  these 
points,  the  said  treaties  and  convention  shall  have  no  operation,  and  the 
relations  of  the  two  countries  shall  be  regulated  as  follows :     *     *     * 

"Aet.  IV. — Property  captured  and  not  yet  definitely  condemned,  or 
which  may  be  captured  before  the  exchange  of  ratifications  (contraband 
goods  destined  to  an  enemy's  port  excepted),  shall  be  mutually  restored 
on  the  following  proofs  of  ownership,  viz  :  The  proof  on  both  sides  with 
respect  to  merchant  ships,  whether  armed  or  unarmed,  shall  be  a  i)ass- 
port  in  the  form  following.  [Here  follows  a  form  of  passport  indentical 
with  that  given  in  the  treaty  of  1778.]  *  *  *  This  article  shall  take 
effect  from  the  signature  of  the  present  convention ;  and  if  from  the 
date  of  said  signature  any  property  shall  be  condemned  contrary  to  the 
intent  of  the  said  convention  before  the  knowledge  of  this  stipulation 
shall  be  obtained,  the  property  so  condemned  shall  without  delay  be 
restored  or  i)aid  for. 

"Aet.  V.  The  debts  contracted  by  one  of  the  two  nations  with  indi- 
viduals of  the  other,  or  by  the  individuals  of  the  one  with  the  individ- 
uals of  the  other,  shall  be  paid,  or  the  payment  may  be  prosecuted  in  the 
same  manner  as  if  there  had  been  no  misunderstanding  between  the 
two  states.  But  this  clause  shall  not  extend  to  indemnities  claimed 
on  account  of  captures  or  confiscations." 

Other  clauses  for  the  avoidance  of  future  difficulties  were  introduced. 

The  Senate  of  the  United  States,  when  the  treaty  was  before  them, 
declined  to  ratify  the  second  article,  inserting  in  its  place  the  follow- 
ing: "It  is  agreed  that  the  present  convention  shall  be  in  force  for  the 
term  of  eight  years  from  the  time  of  the  exchange  of  ratifications."  The 
treaty  was  returned  with  this  amendment  to  the  First  Consul,  who,  on 
July  .30,  1801,  ratified  it  with  the  following  conditions: 

"  The  Government  of  the  United  States  *  *  *  having  omitted 
the  second  article,  the  Government  of  the  French  Ke])ublic  consents  to 
accept,  ratify,  and  confirm  the  above  convention  *  *  *  with  the  re- 
trenchment of  the  second  article:  provided  that  by  this  retrenchment 
tiu;  two  States  renounce  tlie  respective  i)retcnsions  which  are  the  object 
of  that  article."  The  Senate  of  the  United  States,  to  wliom  the  conven- 
tion was  returned,  then  resolved  "that  they  considered  the  said  con- 
vention as  duly  ratified,  and  returned  the  same  to  tlio  President  for  tlio 


§  148a.]  TREATIES.  [chap.  yi. 

usual  pioimilgatioii.''  Presidout  Jeflorsou,  on  Deceiuber  21,  1801,  jiio- 
claiiiKHl  the  treaty  in  tlie  usual  Ibrin  as  "  duly  ratilied,"  and  eujoiiiod 
all  ])ersons  to  observe  aiul  I'ullill  tlie  same. 

3ir.  Madison,  on  Deeend)er  ]8,  lvSt)l,  before  the  convention  had  been 
thus  reeoniniitted  to  the  Senate,  instructed  ]\]r.  Livin«;ston,  minister 
at  I'aris,  "  that  the  President  does  not  rej^ard  the  declaratory  clause  as 
more  than  a  lej^itimate  inference  from  the  rejection  of  the  tSenato  of  the 
second  article."  It  is  on  the  action  thus  stated  that  the  claims  aj^ainst 
the  United  States  lor  French  spoliations  are  based.  (See  iii/'ra,  ^  L'27, 
1'1'S,  L»4S.) 

r»y  the  treaty  of  1800  the  United  States  Government  ai^recd  to  re- 
nounce its  claims  against  France  for  prior  spoliations,  in  consideration 
of  the  renunciation  by  France,  among  other  things,  of  its  claims  against 
the  United  States  for  its  alleged  breach  of  its  guarantee  (in  its  treaty  of 
February  0,  1778)  of  the  French  possessions  in  Ameiica. 

Mr.  Clay,  Sec.  of  State,  1o  rresident  J.  Q.  Adams,  May  20, 18-,'6.     MSS.  Report 

Book. 
Tbe  Frcncli-Auiericau  treaty  of  1800,  a.s  signed  in  Paris  on  September  13,1800, 

Avitb  the  correppondence  relative  thereto,  is  giveji  in  2  Am.  St.  Pap.  (For. 

Rel.),  295.    See,  as  to  eflect  of  the  renunciation  in  the  ratifyinji;  clause,  infra, 

\\248;  supra,  137a. 

By  the  fourth  article  of  the  treaty  with  France,  of  1800,  it  was  provided 
that  ''i)roperty  captured  but  not  yet  definitely  condemned  ♦  *  « 
shall  be  mutually  restored."  It  was  held  that  a  decree  of  condemnation 
by  a  circut  court,  from  which  an  appeal  had  been  taken  to  the  Supreme 
Court,  was  not  a  definitive  condemnation  within  the  meaning  of  the 
treaty. 

U.  S.  r.  Schooner  Peggy,  1  Cranch,  10:>. 

The  convention  of  1800  between  the  United  States  and  France,  ena- 
bling the  people  of  one  country  holding  lands  in  the  other  to  dispose  of  the 
same  by  testament  or  otherwise,  and  to  inherit  lands  in  the  respective 
countries  without  being  obliged  to  obtain  letters  of  naturalization,  ren- 
dered useless  the  performance  of  the  condition  required  by  the  law  of 
Maryland  to  sell  to  a  citizen  within  ten  years,  and  the  conventional 
rule  applied  equally  to  the  case  of  those  who  took  by  descent,  under  the 
act,  as  to  those  who  acquired  by  purchase  without  its  aid. 

Chirac  r.  Chirac,  2  \Vhcat.,  2.')l). 

The  stipulation  in  the  convention  of  1800,  "that  in  case  the  laws  of 
either  of  the  two  States  should  restrain  strangers  from  the  exercise  of 
the  rights  of  property'  with  respect  to  real  estate,  such  real  estate  may 
be  sold,  or  otherwise  disposed  of,  to  citizens  or  inh.abitants  of  the 
country  where  it  may  be,"  was  held  not  to  aflcct  the  rights  of  a  French 
subject,  who  takes  or  holds  by  the  convention,  so  as  to  deprive  him  of 
the  power  of  selling  to  citizens  of  this  country;  and  was  held  to  give  a 
French  subject  who  had  acquired  lands  by  descent  or  devise  (and  per- 
haps in  any  other  manner),  the  right  during  life  to  sell  or  otherwise 
132 


CHAP.  VI.]  I'^RANCE:    CONVENTION    OF    1800.  [§  148^. 

dispose  thereof,  if  lying  iu  a  State  wliere  lands  puieliased  by  an  alien 
would  immediately  be  escheatable.  Although  the  convention  of  1800 
has  expired  by  its  own  limitation,  yet  the  instant  the  descent  was  cast 
on  a  French  subject  during  its  continuance  his  rights  became  comiilete 
under  it,  and  could  not  be  affected  by  its  subsequent  expiration. 
I  hid. 

By  the  fourth  article  of  the  treaty  of  1800  it  was  iirovided  that  "  prop- 
ertj'  captured,  and  not  yet  definitively  condemned,  or  which  may  be 
captured  before  the  exchange  of  ratifications  (contraband  goods  destined 
to  an  euemy-s  port  excepted),  shall  be  mutually  restored."  It  was 
further  provided  that  this  provision  should  tak(3  effect  from  the  signa- 
ture of  the  convention,  and  that,  "  if,  from  the  date  of  the  said  signa- 
ture, any  j^roperty  shall  be  condemned  contrary  to  the  intent  of  the 
said  convention,  before  the  knowledge  of  this  stipulation  shall  be  ob- 
tained, the  property  so  condemned  shall,  without  delay,  be  restored  or 
paid  for."  It  was  held  that  the  case  of  a  Portuguese  brig,  captured  by 
a  French  schooner  in  Jul}",  1800,  and  afterwards  recaptured  by  an  Ameri- 
can vessel  and  taken  to  St.  Kitts,  where  she  was  adjudged  to  be  restored 
to  her  former  owners,  on  payment  of  salvage,  did  not  come  within  this 
article ;  and  that  the  demand  of  the  French  minister  for  the  vessel,  or 
the  salvage,  from  the  United  States,  was  not  well  founded.  The  word 
captu7'e(l,  as  a  technical  and  descriptive  term,  does  not  include  the  mean- 
ing of  the  term  recaptured^  and  should  not  be  given  such  effect  in  the 
above  article. 

1  Op.,  Ill,  Lincoln,  1802. 

The  proceeds  of  a  French  vessel  captured  and  condemned  prior  to 
the  30th  of  September,  1800,  were,  subsequently  to  that  date,  but  in 
pursuance  of  the  decree  of  condemnation  of  the  circuit  court,  paid  over 
in  moieties  to  the  captors  and  the  Government  respectively.  The  de- 
cree of  condemnation  was  afterwards  reversed  by  the  Supreme  Court, 
and  the  moiety  distributed  under  it  to  the  United  States  was  paid  over 
to  the  owners  of  the  vessel.  It  was  advised  that  the  United  States  were 
not  liable,  under  the  fourth  article  above  quoted,  for  the  moiety  which 
had  been  paid  to  the  captors. 

1  Op.,  114,  Lincoln,  1802. 

"This  opinion  was  principally  based  upon  the  ground  that  the  judg- 
ment of  the  circuit  court  was  a  definitive  condemnation,  within  the 
meaning  of  the  treaty.  It  had,  in  fact,  already  been  decided  by  the 
supreme  court  that  the  condemnation  was  not  so  final,  and  that  the  case 
came  within  the  fourth  article.  This  decision  had  not  been  seen  by  the 
Attorney-General,  when  the  above  oi)iiiion  was  given,  and  upon  his  at- 
tention btiing  called  to  it,  he  modified  his  ojjinion  to  the  extent  of  advis- 
ing that  the  decision  of  tl»e  Supreme  Court  be  followed  '  as  binding  in 
this  ]);iiticiilar  instance';  and  addcMJ  tint,  '  allhongh  tliey  (th<'  conit^ 


§148rt]  TREATIES.  [chat.  VI. 

have  tixc'd  the  pimeiple  lor  themselves,  aud  theieby  bouud  others,  in 
reference  to  tbu  case  on  which  they  have  adjudicated,  it  can,  I  conceive, 
extend  no  further.  In  all  other  cases  in  which  tlie  Executive  or  the 
courts  are  obliged  to  act,  they  must  decide  for  tliemselves,  paying  a 
great  deference  to  the  opinions  of  a  court  so  high  an  authority  as  the 
8u])renie  Court  of  the  United  States,  but  still  greater  deference  to  their 
own  convictions  of  the  meaning  of  the  laws  and  (^)nstituli(»n  of  the 
United  States,  and  their  oaths  to  support  thcni." 

1  Op.,  no,  T.incoln,  lc02. 

The  following  jsuinnuiry  of  the  negotiations  with  France  tlown  to  1803 
is  condensed  from  Mr.  J.  C.  Bancroft  Davis's  Notes  to  the  Treaties  of 
the  United  States: 

"On  the  25th  of  January,  1782,  the  Continental  Congress  passed  an 
act  authorizing  and  directing  Dr.  rranklin  to  conclude  a  con.sular  con- 
vention with  France  on  the  basis  of  a  scheme  which  was  submitted  to 
that  body.  Dr.  Franklin  concluded  a  very  different  convention,  whicii 
Jay,  the  Secretary  for  Foreign  Afl'airs,  and  Congress  did  not  approve." 
Franklin  having  returned  to  America,  the  negotiations  then  fell  ujjon 
Jefferson,  who  concluded  the  convention  of  1788.  This  was  laid  before 
the  Senate  by  President  AVashington  on  the  11  th  of  June,  1789. 

"On  the  21st  of  July  it  was  ordered  that  the  Secretai-y  of  Foreign 
Affairs  attend  the  Senate  to-morrow  and  bring  with  him  such  papers  as 
are  requiste  to  give  full  information  relative  to  the  consular  convention 
between  France  aud  the  United  States.  Jay  was  the  Secretary  thus 
'ordered.'  He  was  holding  over,  as  the  new  department  was  not  then 
created.  The  bill  to  establish  a  Department  of  Foreign  Affairs  had  re- 
ceived the  assent  of  both  houses  the  previous  day,  but  had  not  yet  been 
approved  by  the  President.  Jay  appeared,  as  directed,  and  made  the 
necessary  explaiuitions.  The  Senate  then  resolved  that  the  Secretary 
of  Foreign  Affairs  under  the  former  Congress  be  requested  to  peruse  the 
said  convention,  and  to  give  his  opinion  how  far  he  conceives  the  faith 
of  the  United  States  to  be  engaged,  either  by  former  agreed  stipulations 
or  negotiations  entered  into  by  our  minister  at  the  Court  of  Versailles, 
to  ratify  in  its  present  sense  or  form  the  convention  now  referred  to  the 
Senate.  Jay  made  a  written  report  on  the  27th  of  July  that,  in  his  judg- 
ment, the  United  States  ought  to  ratify  the  convention;  and  the  Senate 
gave  its  unanimous  consent..  The  statute  to  carry  the  convention  into 
effect  was  ])assed  the  14th  of  April,  1792. 

"Three  articles  in  the  treaties  with  France,  concluded  before  the  Con 
stitution,  became  the  cause  of  difference  between  the  two  powers: 

"1.  Article  XI  of  the  treaty  of  alliance,  by  which  the  United  States, 
for  a  reciprocal  consideration,  agreed  to  guarantee  to  the  King  of  France 
his  i)Ossessions  in  America,  as  well  present  as  those  which  might  be  ac- 
quired by  the  treaty  of  peace. 

"2.  Article  XVII  of  the  treaty  of  amity  and  commerce,  providing  that 
each  party  might  take  into  the  ports  of  the  other  its  prizes  in  time  of 
war,  and  that  tlun'  should  be  permitted  to  depart  without  molestation  ; 
and  that  neither  should  give  shelter  or  refuge  to  vessels  which  luul 
made  prizes  of  the  other  unless  forced  in  by  stress  of  weather,  in  which 
case  they  should  be  icqiiired  to  dei)art  as  soon  as  possible. 

"3.  Article  XXII  of  the  same  treaty,  that  foreign  privateers,  the  ene- 
mies of  one  party,  should  not  be  allowed  in  the  iforts  of  the  other  to  fit 

134 


CIIAr.  VI.]  FRANCE:    CONVENTION    OF    1800.  [§  148a. 

their  ships  or  to  excliauge  or  sell  their  captures,  or  to  purchase  pro- 
visions except  iu  sufificieut  quantities  to  take  them  to  the  uext  port  of 
their  own  state. 

"Jefferson,  who  was  the  minister  of  the  United  States  at  the  Court  of 
Versailles  when  the  Constitution  went  into  operation,  was  appointed 
Secretary  of  State  by  President  Washington  on  the  2Gth  of  Se])tember, 
1789.  He  accepted  the  appointment  and  presented  Short  to  Neckar  as 
charg^  d'aflaires  of  the  United  States. 

"Gronverneur  Morris,  of  New  York,  who  had  been  in  Europe  from  the 
dawn  of  the  French  revolution,  and  had  been  in  regular  friendly  cor- 
respondence with  Washington,  was  appointed  minister  to  France  on 
the  12th  of  January,  1792.^   (See  siqjra,  §§  107  ./7.) 

"Morris  *  *  *  (Xid  ^ot  succeed  in  gaining  the  good-will  of  a  suc- 
cession of  Governments,  with  which  he  hnd  little  sympathy ;  for  he 
writes  Jefferson,  on  the  13th  of  February,  1793:  'Some  of  the  leaders 
here  who  are  in  the  diplomatic  committee  hate  me  cordially,  thoujih  it 
would  puzzle  them  to  say  why.'     See  suj)ra,  §§  84,  85, 107  ff.  ;  infra,  §  150. 

"  When  Morris  was  appointed  minister,  the  commercial  relations  be- 
tween the  two  countries  were  satisfactory  to  neither.  Exceptional 
favors  to  the  commerce  of  the  United  States,  granted  by  royal  decree 
in  1787 -and  1788,  had  been  withdrawn  and  a  jealousy  was  expressed 
in  France  in  consequence  of  the  act  of  Congress  putting  British  and 
French  commerce  on  the  same  basis  in  American  i)orts.  No  excep- 
tional advantages  had  come  to  France  from  the  war  of  the  Eevolution, 
and  American  commerce  had  reverted  to  its  old  British  channels. 

"Jefferson  greatly  desired  to  conclude  a  convention  with  France 
which  should  restore  the  lavors  which  American  commerce  had  lost, 
and  bring  the  two  countries  into  closer  connection.  On  the  10th  of 
March,  1792,  he  instructs  Morris:  'We  had  expected  ere  this,  that  in 
consequence  of  the  recommendation  of  their  predecessors,  some  over- 
tures would  have  been  made  to  us  on  the  subject  of  a  treaty  of  commerce. 
*  *  *  Perhaps  they  expect  that  we  should  declare  our  readiness  to 
meet  on  the  ground  of  treaty.  If  they  do  we  have  no  hesitation  to 
declare  it.'  Again,  on  the  28th  of  April,  he  writes:  'It  will  be  impos- 
sible to  defer  longer  than  the  next  session  of  Congress  some  counter- 
regulations  for  the  protection  of  our  navigation  and  commerce.  I  must 
entreat  j'ou,  therefore,  to  avail  yourself  of  every  occasion  of  friendly 
remonstrance  on  this  subject.  If  they  wish  an  equal  and  cordial  treaty 
with  us,  we  are  ready  to  enter  into  it.  We  would  wish  that  this  could 
be  the  scene  of  negotiation.'  Again,  on  the  16th  of  June,  he  writes: 
'That  treaty  maybe  long  on  the  anvil;  iu  the  mean  time  we  cannot 
consent  to  the  late  innovations  without  taking  measures  to  do  justice 
to  our  own  navigation.' 

"The  great  revolution  of  the  10th  of  August,  and  the  imprisonment 
of  the  King,  were  duly  reported  by  Morris;  and  Jefferson  icplicd  on 
the  7th  of  November:  'It  accoids  with  our  princii>les  to  acknowledge 
any  Government  to  be  rightful  which  is  formed  by  the  will  of  the  na- 
tion substantially  declared  *  *  *  There  are  some  matters  which  I 
conceive  might  be  transacted  with  a  Government  de  facto;  such,  for 
instance,  as  the  reforming  the  unfriendly  restrictions  on  our  commerce 
and  navigation.' 

"To  tliese  instructions  Morris  answered  on  the  13th  of  February, 
1793,  three  weeks  alter  the  execution  of  the  King,  and  a  fortnight  after 
the  declaration  of  war  against  Kngland  :  'Y(ni  luul  *  *  *  instiucled 
me  to  endeavor  to  tra.nsier  tlu'  negotiation  for  a  new  trenty  to  Amer- 

135 


§  148rt.]  TREATIES.  '  [ciTAP.  VI. 

ica,  and  il'  llic  n'volulioii  of  llic  lUlli  oC  .Viij^iust  had  not  (aUcn  jdaee. 
*  *  *  1  slionld,  pi'iliaps,  liave  obtained  what  you  wished.  *  *  * 
The  tiling  you  wished  for  is  done,  and  you  can  treat  in  Anieriea  if  you 
please.'  In  the  same  dispatch  Morris  s|)oke  of  the  '  sendinj;-  out  of  M. 
Genet,  without  nientioninj;-  to  me  a  syllable  either  of  his  ndssion  or  his 
errand.'  and  said  that  'the  i)omi)ousness  of  this  end)assy  eould  not  but 
excite  th»'  atti'ution  of  ICnuIand.' 

''On  the  7th  of  ^larch  ^Morris  wiote  to  Jefferson  that  'iJenet  took  out 
with  him  three  hundred  blank  commissions,  which  lie  is  to  distribute 
to  such  as  will  tit  out  cruisers  in  our  jjoits  to  prey  on  the  British  com- 
merce,* and  that  he  had  already  mentioned  the  fact  to  rinckney,  and 
had  desired  him  to  transmit  it. 

"The  new  condition  of  alfairs  caused  by  the  war  induced  the  Presi- 
tleiit  to  subntit  a  series  of  questions  to  the  members  of  his  cabinet  for 
their  consideration  and  reply.  It  would  seem  from  a  jiassaj^e  in  j\Ir. 
Jetferson's  Ana  that  the  second  of  these  (luestions — 'shall  a  minister 
from  France  be  received?' — was  sugjj^ested  by  the  Secretary  of  State. 
An  account  of  the  meeting  of  the  Cabinet  at  which  these  questions 
were  discussed  will  be  found  in  0  Jeff.  "Works,  142.     (See  supra,  §  I'M.) 

"The  first  two  questions  were  unanimously  answered  in  the  atlirma- 
tive — that  a  proclamation  for  the  jiurpose  of  preventing  citizens  of  the 
United  States  from  interfering  in  the  war  between  France  and  Great 
Britain  should  issue,  and  that  (ieuet  should  be  received;  but  byacoai- 
promise,  the  term  'neutrality'  was  omitted  from  the  text  of  the  ])roc- 
lamation."     (See,  as  to  this  i)roclamation,  infra,  §§  402,  402(f.) 

"The  policy  which  Washington  favored  denied  France  nothing  that 
she  could  justly  demand  under  the  treaty,  except  the  jiossible  enibrce- 
ment  of  the  jirovision  of  guarantee;  and  that  ])rovision  was  waived  by 
Genet  in  his  first  interview  with  Jefferson.  '  We  know,'  he  said,  'that 
under  present  circumstances  we  have  a  right  to  call  upon  you  for  the 
guarantee  of  our  islands.  But  we  do  not  desire  it.'  *  *  *  [Infra. 
§§248,  402;  supra,  §84.) 

"It  is  uot  likely  that  the  purposes  of  Genet's  mission  were  fully  com- 
prehended by  the  American  Government.  By  a  treaty  in  17G2  (first 
made  public  in  1830),  France  ceded  Louisiana  to  Spain.  Genet  was 
instructed  to  sound  the  disposition  of  the  inhabitants  of  Louisiana  to- 
Avards  the  French  Eepublic,  and  to  omit  no  opi)ortunity  to  profit  by  it 
should  circumstances  seem  favorable,  lie  was  also  to  direct  particular 
attention  to  the  designs  of  the  Americans  upon  the  Mississij)!)!.    *    *    * 

"He  continued  to  claim  and  exercise  the  right  of  using  the  ports  of 
the  United  States  as  a  base  for  warlike  operations,  and,  as  the  discus- 
sions went  on,  his  expressions  became  stronger,  and  more  contenii)tu- 
ous  toward  the  President  and  the  Government  of  the  United  States. 
[Supra,  §  84  ;  infra,  §  400.) 

"His  instructions  contemplated  a  ])olitical  alliance  between  the  two 
Kepublics.  This  was  never  proposed.  He  did  propose,  however,  the 
rearrangement  of  the  debt  due  to  France  on  the  basis  of  the  payment  of 
a  larger  installment  than  was  required  by  the  contract,  to  be  expended 
in  the  purchase  of  i)rovisions  in  the  United  States;  and  the  conclusion 
of  a  new  commercial  treaty.  Jefferson  declined  the  former,  and  as  to 
the  latter  said  that  the  ])articipation  in  matters  of  treaty  given  by  the 
Constitution  to  the  Senate  would  delay  any  definite  answer.     *     *     * 

"  In  retaliation,  the  executive  provisory  council  of  the  French  Kei)ub- 
lic  demanded  the  recall  of  ^Morris.  In  communicating  the  fact  to  him, 
Secretary  lvaiidoli)li  said,    'You  have  been    assaile(l,  however,  from 

130 


CHAP.  VI.]  FRANCE:    CONVENTION    OF    1800.  [§  148rt. 

auotlier  quarter.  Xotliing  has  ever  been  said  to  aii^'  oilieer  of  our  Gov- 
eruuieut  bj-  the  ministers  of  Frauce  wbich  required  attention  until  the 
9tb  day  of  April  last,  wben  Mr.  Fawcliet  communicated  to  me  a  part  of 
his  instructions,  indirectly  but  plainly  making  a  wish  for  your  recall. 
In  a  lew  days  aiterwards  a  letter  Avas  received  from  the  executive  pro- 
visory council  expressive  of  the  same  wish.  Mr.  Fawchet  was  answered 
by  me,  under  the  direction  of  the  President,  as  I  am  snre  yonr  good 
sense  will  think  inevitable,  that  the  act  of  reciprocity  demanded  should 
be  performed.'     (See  sujJra,  §  84.) 

"  Washington  wrote  3Iorris,  when  his  successor  went  out,  '  I  have  so 
far  departed  from  my  determination  as  to  be  seated  in  order  to  assure 
you  that  my  confidence  in  and  frieudshii)  and  regard  for  you  remain 
undiminished,  *  *  *  and  it  will  be  nothing  new  to  assure  you  that 
I  am  always  and  very  sincerely,  yours,  affectionately ; '  Und  when  his 
correspondence  was  called  for  by  the  Senate,  Washington  himself,  in 
association  with  Hamilton  and  liandolph,  went  over  it  (and  it  was  vo- 
luminous) in  order  that  nothing  might  be  communicated  which  would 
put  in  peril  those  who  had  given  him  information,  or  whichwould  react 
upon  him  in  Frauce.     (See  supra.,  §§  84,  107.) 

"  Monroe  succeeded  Morris,  and  on  the  lL*th  of  Febiuaiy,  1795,  wrote: 
'  Upon  my  arrival  here  I  found  our  aflairs  *  *  *  ju  the  worst  pos- 
sible situation.  The  treaty  between  the  two  Eepublics  was  violated. 
Our  commerce  was  harassed  in  every  quarter  and  in  every  article,  even 
that  of  tobacco  not  excepted.  *  *  *  Our  former  minister  was  not 
only  without  the  confidence  of  the  Government,  but  an  object  of  par- 
ticular jealousy  and  distrust.  In  addition  to  which  it  was  suspected 
that  we  were  about  to  abandon  them  for  a  connection  with  England, 
and  for  which  \i\\x\iO?>Q  'principaUy  it  was  believed  that  Mr.  Jay  had  been  , 
sent  there.'     (See  supra,  §  85.) 

"Monroe's  and  Jay's  services  commenced  nearly .  simultaneously. 
Monroe's  commission  was  dated  the  28th  of  May,  and  Jay's  the  19th  of 
April,  1791:.  Jay's  treat}'  was  proclaimed  the  29th  of  February,  179G. 
Monroe  was  not  recalled  until  the  22d  of  the  following  August,  but  the 
angry  correspondence  which  preceded  his  recall  may  be  said  to^have 
been  caused  bj'  a  radical  difference  of  opinion  respecting  his  colleague's 
mission  to  London.     *     *     * 

"  The  course  of  the  French  was  giving  rise  to  many  claims  :  For  spo 
liations  and  maltreatment  of  vessels  at  sea,  for  losses  by  the  embargo  at 
Bordeaux,  for  the  non-payment  of  drafts  drawn  by  the  colonial  admin- 
istrations, for  the  seizure  of  cargoes  of  vessels,  for  non-performance  of 
contracts  by  Government  agents,  for  condemnation  of  vessels  and  their 
cargoes,  in  violation  of  the  provisions  of  the  treaties  of  1778,  and  for 
captures  under  tbe  decree  of  May  9,  1793.  Skipwith,  the  consul-gen- 
eral of  the  United  States  in  France,  was  directed  to  examine  into  and 
rei)ort  ui)on  these  claims.  Ills  report  was  made  on  the  20th  November, 
1795. 

"On  the  9th  of  September,  179G,  Charles  Cotesworth  Pinckney  was 
sent  out  to  i(*i)lacc  ^lonroe,  with  a  letter  from  the  Secretaiy  of  State, 
saying,  'The  chnms  of  tiie  American  merchants  on  the  French  Pepub- 
lie  are  of  great  extent,  and  they  are  waiting  the  issue  of  them,  through 
the  public  agents,  with  much  impatience.  Mr.  Pinckney  is  i)articularly 
charged  to  look  into  this  business,  in  which  the  serious  interests,  an(l, 
in  soine  cases,  nearl}' the  whole  ibrtunes  of  our  citizens  are  involved.' 
lint  ih(Mlirectory, early  in  October,  179.i,  recalled  their  minister  from 
the  I'nited  States.     15efere  IMti<-iuM'y  could  anive  in  r'rauce,  they,  '  in 

137 


§  148a.]  TREATIES.  [CIIAP.  VI, 

Older  to  strike  a  mortal  blow,  at  tbe  same  moment,  to  British  industry 
and  the  urolitable  trade  of  Americans  in  France,  i)r()miiljiated  the  fa- 
mous law  of  the  10th  Urumaire,  year  5  (,'ilst  October,  ITiSd),  whereby 
the  im|)ortation  of  mannlactured  articles,  whether  of  Englisli  make  or 
of  Enolish  commeice,  was  ]>r()hibited  both  by  land  and  sea  thionjihout 
the  I'rench  liei)nblic; '  and,  on  his  arrival,  they  informed  Monroe  '  that 
the  directory  would  no  loni;er  recognize  or  receive  a  minister  i)lenii)0- 
tentiaiy  iVom  the  United  (States  until  alter  a  reparation  of  the  fj^riev- 
ances  di'inanded  of  the  American  CJovernment,  and  which  the  I'rench 
licpublic  has  a  ri^ht  to  exix'ct.' 

"  l*inckney  was  thereui)on  ordered  to  (|uit  France  under  circum- 
stances of  ^reat  indi'^nity,  and  IMonroe  took  his  formal  leave  on  the 
;H)th  Decen)ber,  1700.     (See  sitpra,  §  85.) 

"The  executive  directory,  on  the  2d  of  March,  17!>7,  decreed  that 
all  neutral  ships  with  enen)y's  ])ropei  ty  on  board  mi^dit  be  cai)tured ; 
that  enemy's  property  in  neutral  bottoms  mi<iht  be  conliscated  ;  that  the 
treaty  of  1778  with  the  United  States  should  be  modified  by  the  oi)era- 
tion  of  the  favored-nation  clause,  so  as  to  conibrm  to  .Jay's  treaty,  in 
the  ibllowin^  respects:  (1)  That  ])roperty  in  American  bottoms  not 
])roved  to  be  neutral  should  be  confiscated;  (2)  That  the  bst  of  con- 
traband of  war  should  be  made  to  conform  to  Jay's  treaty;  (3)  that 
Americans  taking-  a  commission  against  France  should  be  treated  as 
pirates,  and  that  every  American  shi])  should  be  cood  prize  which 
should  not  have  on  board  a  crew-list  in  the  form  prescribed  by  the 
model  annexed  to  the  treaty  of  1778,  the  observance  of  which  Avas  re- 
quired by  the  l'r)th  and  27th  articles.  The  25th  article  made  i)rovision 
tor  a  passport  and  for  a  certificate  of  cargo.  The  27th  article  took 
notice  only  of  the  passport,  and  the  model  of  the  i)assport  only  was 
annexed  to  the  treaty.  The  treaty  required  that  the  passport  should 
express  the  name,  property,  and  bulk  of  the  ship,  and  the  name  and 
place  of  habitation  of  the  master,  but  it  made  no  i>rovision  respecting 
the  crew-list.  After  the  adoption  of  the  Constitution,  Congress,  by 
general  laws,  made  provision  for  national  oflicial  do(-uments  for  i)roof 
of,  among  other  things,  the  facts  referred  to  in  the  25th  and  27th  arti- 
cles of  the  treaty  with  France.  The  name  of  the  ship  was  to  be  painted 
on  her  stern,  and  to  be  shown  in  the  register;  her  ownership  was  to  be 
proven  on  oath,  and  be  stated  in  the  register,  and  her  tonnage  was  to 
be  stated  in  the  same  instrument,  as  the  result  of  our  official  survey. 
Equally  cogent  laws  were  made  to  insure  an  accurate  crew-list.  It  is 
probable,  therefore,  that  when  the  decree  of  March  2,  1797,  was  made^ 
there  was  not  an  American  ship  afloat  with  the  required  documents  ; 
and  it  is  equally  probable  that  the  French  Government,  which,  with 
the  whole  civilized  world,  had  acquiesced  in  the  sufficiency  of  the  new 
national  system,  knew  that  to  be  the  fact.  The  decree  was,  therefore, 
equivalent  in  its  operation  to  a  declaration  of  maritime  war  against 
American  commerce.  The  United  States  had  at  that  time  no  navy 
against  which  such  a  war  could  be  carried  on.    *     *     * 

"President  Adams,  in  his  speech  at  the  opening  of  the  first  session 
of  the  Fifth  Congress  (May  10,  1707),  said:  '"With  this  conduct  of  the 
French  Government  it  will  be  proper  to  take  into  view  the  i)ublic  au- 
dience given  to  the  late  minister  of  the  United  States  on  his  taking 
leave  of  the  executive  directory.  The  speech  of  the  President  dis- 
closes sentiments  more  alarming  than  the  refusal  of  a  minister,  because 
more  dangerous  to  our  independence  and  union,  and  at  the  same  time 
studiously  marked  with  indignities  towards  the  Government  of  the 

138 


CUAV.  Vl]  FRANCE:    CONVENTION    OF    1800.  [§  148(7. 

Uuited  States.  It  evinces  a  disposition  to  separate  the  people  of  the 
United  States  from  the  Government ;  to  persuade  them  tliat  they  have 
different  affections,  principles,  and  interests  from  those  of  their  fellow- 
citizens  whom  they  themselves  have  chosen  to  manage  their  common 
concerns,  and  thus  to  produce  divisions  fatal  to  our  peace.  Such  at- 
tempts ought  to  be  repelled  with  a  decision  which  shall  convince  France 
and  the  world  that  we  are  not  a  degraded  people,  humiliated  under  a 
colonial  spirit  of  fear  and  sense  of  inferiority,  fitted  to  be  the  miserable 
instruments  of  foreign  influence,  and  regardless  of  national  honor, 
character,  and  interest.    *     *     * 

"  'The  diplomatic  intercourse  between  the  Uuited  States  and  France 
being  at  present  suspended,  the  Government  has  no  means  of  obtaining 
official  information  from  that  country ;  nevertheless  there  is  reason  to 
believe  that  tlie  executive  directory  passed  a  decree  on  the  2d  of  March 
last,  contravening,  iu  part,  the  treaty  of  amity  and  commerce  of  1778, 
injurious  to  our  lawful  commerce,  and  enchangering  the  lives  of  our  citi- 
zens.    A  copy  of  this  treaty  will  be  laid  before  you. 

"  '  While  we  are  endeavoring  to  adjust  all  of  our  differences  with 
France,  by  amicable  negotiations,  the  progress  of  the  war  in  Europe, 
the  depredations  on  our  commerce,  the  personal  injuries  to  our  citizens, 
and  general  complexion  of  affairs,  render  it  my  indispensable  duty  to 
recommend  to  your  consideration  effectual  measures  of  defense. 

"  '  It  is  impossible  to  conceal  from  ourselves,  or  the  world,  what  has 
been  before  observed,  that  endeavors  have  been  employed  to  foster  and 
establish  a  division  between  the  Government  and  the  people  of  the 
Uuited  States.  To  investigate  the  causes  which  have  encouraged  this 
attemi)t  is  not  necessarj'.  But  to  repel,  by  decided  and  uuited  counsels, 
insinuations  so  derogatory  to  the  honor,  and  aggressions  so  dangerous 
to  the  Constitution,  Union,  and  even  independence  of  the  nation,  is  an 
indispensable  duty. 

"The  answer  of  the  House  to  this  speech  was  in  a  conciliatory  spirit; 
and  on  the  first  of  the  following  June  Congress  yielded  so  far  as  to  pass 
a  law  providing  for  passports  for  ships  and  vessels  of  the  United  States. 

''  Congress  adjourned  on  the  10th  of  July.  On  the  13th  President 
Adams  commissioned  Charles  Cotesworth  Pinckney,  John  Marshall, 
and  Elbridge  Gerry  as  envoys  to  proceed  to  France  and  endeavor  to 
renew  the  relations  which  had  been  so  rudely  broken  by  the  directory. 
Their  instructions  will  be  found  in  the  2d  volume  of  the  folio  Foreign 
delations,  pages  153,^.  xVmong  other  matters  they  were  to  secure  an 
adjustment  of  the  claims  for  spoliations  of  citizens  of  the  United  States, 
by  this  time  amounting  to  many  millions  of  dollars. 

"They  arrived  in  Paris  on  the  evening  of  the  4th  of  October,  1797, 
and  at  once  notified  the  foreign  minister  of  their  presence  and  requested 
an  interview.  Instead  of  receiving  them,  three  gentlemen,  who  have 
become  known  in  history  as  X,  Y,  and  Z,  waited  upon  them  at  various 
times,  sometimes  singly  and  sometiujes  together,  and  claimed  to  speak 
for  Talleyrand  and  the  directory.  They  told  the  envoys  that  they  mu.st 
pay  money.  '  a  great  deal  of  money ; '  and  when  they  were  asked  how 
much,  they  replied  '  fifty  thousand  i)ounds  sterling'  as  a  douceur  to  the 
directory,  and  a  loan  to  France  of  thiitytwo  millions  of  IJutch  florins. 
They  said  that  the  passages  in  the  President's  speech  which  are  quoted 
above  had  ollendcd  the  directory,  and  must  be  retracted,  and  they 
urgeU  upon  the  commissioners  in  rei)eated  interviews  the  necessity  of 
o])ening  the  negotiations  by  projjosals  to  that  effect. 

"Tlie  American  commissioners  listene*!  to  their  statements,  and  after 
consultation  det<atnined  th.it  they  '  should  hold  no  inor<!  indirect  inter- 

139 


§  148rt.]  TREATIES.  [OTIAP.  VI. 

course  Mitli  the  CJovi'iiuiK'iit,  Uliey  addicsscd  a  k'ttcr  to  TallcMaiid 
oil  tlie  lltli  of  November,  inl'orniing^  Inm  that  tlioy  were  ready  to  nego- 
tiate. They  {iot  no  answer;  but  on  the  1  Itli  of  December  X  appeared 
.again,  on  the  17th  Y  appeared,  and  on  tlie  L'Oth  'a  lady,  wlio  is  well 
aecpiainted  with  ^I.  Talleyrand,'  talked  to  Pinckney  on  the  subject;  still 
they  got  no  answer  from  Talleyrand,  aud  on  the  ISth  of  January  they 
read  the  announcement  of  a  decree  that  every  vessel  fouiul  at  sea  loaded 
with  merchandise,  the  ])roduction  of  England,  should  be  good  i)rize. 
Though  unrecognized,  they  addressed  an  elaborate  h'tter  on  the  27th 
of  January,  1798,  to  Talleyraml,  setting  forth  in  detail  and  with  great 
ability  tlie  grievances  of  the  United  States.  On  the  I'd  of  March  they 
had  an  interview  with  Iiim.  lie  repeated  that  the  directory  had  taken 
otfense  at  Mr.  Adams's  speech,  and  added  that  they  had  been  wounded 
by  the  last  speeeli  of  rresiilent  Washington,  lie  comi)lained  that  the 
envoys  had  not  been  to  see  him  i)ersonally  ;  and  he  urged  that  they 
should  i)roi)ose  a  loan  to  France.  IMnckney  said  that  the  i)roi)ositions 
seemed  to  be  those  made  l)y  X  and  Y.  The  envoys  then  said  that  they 
bad  no  power  to  agree  to  nnike  such  a  loan.  On  the  ISth  of  jMarcli 
Talleyrand  transmitted  his  reply  to  their  note.  lie  dwelt  ujjou  Jay's 
treaty  as  the  principal  grievance  of  France.  He  says  '  he  will  content 
himself  with  observing,  summarily,  that  in  this  treaty  everything  hav- 
ing been  calculated  to  turn  the  neutrality  of  the  United  States  to  the  dis- 
advantage of  the  French  liepublic,  and  to  the  adxantage  of  iMigland  ; 
that  the  Federal  Government  having  in  this  act  made  to  Oreat  Britain 
concessions  the  most  unheard  of,  the  most  incompatible  with  the  in- 
terests of  the  United  States,  the  most  derogatoiy  to  the  alliance  which 
subsisted  between  the  said  States  and  the  Fiencli  Ivcpublic,  the  latter 
was  perfectly  free,  in  order  to  avoid  the  inconveniences  of  the  treaty  of 
London,  to  avail  itself  of  the  preservative  means  with  which  the  law 
of  nature,  the  laws  of  nations,  and  prior  treaties  furnish  it.'  lie  closed 
by  stating  'that  notwithstanding  the  kind  of  i)rejudice  which  has 
been  entertained  with  respect  to  them,  the  executive  directory  is  dis- 
posed to  treat  with  that  one  of  the  three  whose  opinions,  presumed  to 
be  more  impartial,  promise,  in  the  course  of  the  explanations,  more  of 
that  reciprocal  contideuce  which  is  indis])ensable.' 

'■  Cierry  was  the  member  referred  to.  The  three  envoys  answered  that 
no  one  of  the  three  was  authorized  to  take  the  negotiation  upon  him- 
self. Pinckney  and  Marshall  then  left  Paris.  Clerry  remained.  Talley- 
rand tried  to  induce  him  to  enter  into  negotiations  for  a  loan  to  France, 
but  he  refused.  Before  he  left  Paris  a  mail  arrived  from  America 
bringing  jninted  copies  of  the  dispatches  of  the  envoys,  with  accounts 
of  their  interviews  with  X,  Y,  and  Z,  and  'the  lady.'  Talleyrand  at 
once  asked  Gerry  for  the  four  names.  Gerry  gave  him  tlie  name  of  Y, 
]Mr.  Bellamy,  and  Z,  Mr.  Hautval,  and  said  that  he  couhl  not  give  Hie 
lady's  name,  and  would  not  give  X's  name.  The  name  of  X  is  preserved 
in  the  Department  of  State.     Gerry  left  Paris  on  the  2Gth  July,  1798. 

"Tho  President  transmitted  to  Congress  the  reports  of  the  envoys  as 
last  as  they  were  received;  and  when  he  heard  of  Marshall's  arrival  in 
Aujerica  he  said  to  Congress,  '1  will  never  send  another  minister  to 
France  without  assurances  that  he  will  be  received,  respected,  aud  hon- 
ored as  the  representative  of  a  great,  free,  powerful,  and  independent 
nation.'  The  statutes  of  the  United  States  show  the  impression  which 
the  news  made  upon  Congress.  The  'act  to  provide  an  additional  arma- 
ment for  the  lurther  i)rotection  of  the  trade  of  tlie  United  States,  and 
for  other  ])ur[)Oses,'  is  the  iirst  of  a  serien  of  acts.     It  was  i)assed  in  the 

140 


CHAP.  VI.]  FRANCE:    CONVENTION    OF    1800.  [§  148«. 

House  amid  great  excitement.  Edward  Livingstou,  who  closed  tlie 
debate  ou  the  part  of  the  opposition,  said,  'Let  no  man  flatter  himself 
that  the  vote  which  has  been  given  is  not  a  declaration  of  war.  Gen- 
tlemen know  that  this  is  the  case.'  This  was  followed  in  the  course  of 
a  few  weeks  by  acts  organizing  a  Xavy  Department ;  for  increasing'  or 
regulating  the  Army;  for  purchasing  arms;  for  construction  of  vessels; 
for  authorizing  the  capture  of  French  vessels;  for  suspending  all  inter- 
course with  France;  for  authorizing  merchant-vessels  to  protect  them- 
selves; for  abrogating  the  treaties  with  France;  for  establishing  a  ma- 
rine corps,  and  for  authorizing  the  borrowing  of  money.  In  the  next 
session  of  Congress  further  augmentation  of  the  Navy  and  of  the  Army 
was  made;  the  suspension  of  intercourse  was  prolonged,  and  provis- 
ions were  made  for  restoring  captured  French  citizens,  and  for  retalia- 
tions in  case  of  death  from  impressments."     (See  infra,  §§  2-18,  335.) 

"  It  was  on  the  21st  of  June  that  President  Adams  informed  Congress 
of  the  terms  on  which  alone  he  would  be  willing  to  send  a  new  minister 
to  France.  Talleyrand  immediately  opened  indirect  means  of  communi- 
cation with  the  American  Cabinet  through  Murray,  the  American  min- 
ister at  The  Hague,  and  on  the  28th  of  September  he  sent  word  through 
Pichon,  the  French  secretary  of  legation  at  the  same  place,  that '  what- 
ever plenipotentiary  the  Government  of  the  United  States  might  send 
to  France  in  order  to  terminate  the  existing  difi'erences  between  the  two 
countries,  he  would  be  undoubtedly  received  with  the  respect  due  to  the 
representative  of  a  free,  independent,  and  powerful  nation.'  To  this 
prolfer,  embodying  the  language  of  the  President's  message  to  Congress, 
the  President  replied byempoweringChiefJusticeEllsworth, Mr.  Davie, 
and  Mr.  Murray  '  to  discuss  and  settle,  by  a  treaty,  all  controversies 
between  the  United  States  and  France.'  (See  this  action  discussed, 
.swj^m,  §  83.) 

"When  these  envoys  arrived  in  France  they  found  that  the  direct- 
ory had  been  overthrown,  and  they  had  to  deal  with  Bonaparte  as  First 
Consul.  They  succeeded  in  restoring  good  relations.  An  account  of 
their  negotiations  will  be  found  in  the  2d  volume  of  the  folio  edition  of 
the  Foreign  Relations,  pages  307  to  345.  Their  instructions  required 
them  to  secure,  (1)  A  claims  commission  ;  (2)  abrogation  of  the  old 
treaties;  (3)  abolition  of  the  guarantee  of  1778;  (4)  no  agreement  for  a 
loan  ;  (5)  no  engagements  inconsistent  with  ])rior  treaties,  meaning, 
doubtless,  Jay's  treaty  ;  (G)  no  renewal  of  the  peculiar  jurisdiction  con- 
ferred on  consuls  by  the  convention  of  1788 ;  (7)  duration  of  a  treaty  not 
to  exceed  twelve  years. 

"The  negotiators  exchanged  their  powers  on  the  7th  of  xVpril,  1800, 
and  concluded  a  treaty  on  the  30th  of  the  following  September,  which 
(1)  declared  that  the  parties  could  not  agree  upon  the  indemnities;  (2) 
nor  as  to  the  old  treaties ;  (3)  and  consequently  was  silent  respecting 
the  guarantee ;  but  (4)  made  no  provisions  for  a  loan ;  (5)  made  no 
engagements  inconsistent  with  prior  treaties;  (0)  did  not  renew  the 
objectionable  consular  provisions,  and  (7)  no  limitation  was  set  to  its 
operation. 

"  "When  it  was  submitted  to  the  Senate  that  body  advised  its  ratilica- 
tion,  provided  the  second  artiiile  concerning  indemnities  should  be  ex- 
punged, and  that  the  convention  should  be  in  force  for  eight  years  from 
the  (late  of  the;  exchange  of  the  ratiticatioiis.  The  J-'reiich  (iovernment 
assent<*(l  to  the  limitation  of  the  duration  of  the  treaty,  and  to  tlu^  ex- 
punging of  the  2<1  :iiti(;le,  upon  condition  that  it  .should  be  understood 
that  theicby  each  party  lenounced  the  pretensions  which  were  the  ob- 
jects of  the  article  ;  which  was  assented  to  l)y  the  Senate.     *     ♦     * 

141 


§  148?>.]  TREATIES.  [CIIAP.  VI. 

"  Between  the  conclusion  of  the  two  treaties  of  1800  and  1803  a  corre- 
spondence arose  respectin*;  the  construction  of  the  former  treaty.  Rob- 
ert Livinj^ston,  the  minister  of  the  United  States,  comphiined  tliat  the 
council  of  ])rizes  (which  we  reg,arde(l  'as  a  political  board')  was  pro- 
ceeding' in  violation  of  the  provisions  of  the  treaty.  On  the  L*Gth  of 
January,  1802,  he  was  'almost  hoi)eless'  as  to  the  claims.  IJis  anxiety 
communicated  itself  to  Madison.  The  French  court  next  juoposed  to 
njeet  the  French  obligations  in  i)aper  money,  while  the  ai)propriations 
on  the  American  side  were  ])ayable  in  coin.  Livingston  tliought  Uona- 
partestood  in  the  way,  and  tliat,  should  anything  hai)]>eu  to  him.  Franco 
would  '  very  soon  be  able  to  look  all  demands  in  the  face.'  IMonroe  was 
sent  out  to  aid  in  the  uegoiiations,  with  special  powers  as  to  New  Or- 
leans and  the  Floridas.  He  arrived  just  in  time  to  lind  the  First  Consul 
bent  on  ])arting  with  Louisiana  and  settling  with  the  United  States. 
On  the  nth  of  March,  1803,  Talleyrand  was  already  giving  signs  of  yiehl- 
ing.  He  expressed  surprise  at  the  amount  of  the  American  claims  ad- 
vanced by  Livingston  (20,000,000  francs),  but  avowed  his  purpose  of 
paying  them,  whatever  they  might  be,  and  asked  for  a  specitied  state- 
ment. An  exphmation,  which  may  account  for  part  of  this,  may  bo 
found  in  two  dates.  The  peace  of  Amiens  was  signed  the  25th  of  JMarch, 
1802  5  the  declaration  of  the  renewal  of  the  war  was  dated  the  18tli  of 
May,  1803." 

Of  the  convention  of  1800,  Mr.  Jefferson,  in  a  letter  to  Mr.  Madison 
on  December  19,  1800,  writes  :  » 

"Davie  is  here  with  the  convention,  as  it  is  called;  but  it  as  a  real 
treaty,  without  limitation  of  time.  Jt  lias  some  disagreeable  features, 
and  will  endanger  the  compromising  us  with  Great  Britain.  I  am  not 
at  liberty  to  mention  its  contents,  but  I  believe  it  will  meet  with  opi)o- 
sition  from  both  sides  of  the  bouse.  It  has  been  a  bungling  negotia- 
tion." 

2  Eandall's  Jefl'ersou,  577. 

The  effect  of  the  "renunciation"  introduced  by  Napoleon  into  the 
ratification  is  considered,  infra^  §§  228,  248. 

(c)   TREATY   OF   1803.      (CESSION  OF    LOUISIANA.) 
§  148&. 

The  proceedings  leading  to  this  treaty  are  discussed,  supra,  §  72. 
As  to  the  Spani.sh  grants  in  Louisiana  after  1803,  see  supra,  §5. 
For  the  effect  of  this  treaty  on  the  claims  of  citizens  of  the  United 
States  against  their  own  Government  for  spoliations,  see  infra,  §  248. 

"  The  report  that  the  British  Government  had  cautioned  ours  not  to 
l)ay  the  money  for  Louisiana,  tor  that  they  meant  to  take  possession  of  it, 
is  utterly  destitute  of  foundation.  The  British  Government  has,  on  the 
contrary,  expressed  its  satisfaction  with  the  cession,  and,  although  the 
terms  of  it  might  not  at  the  time  be  particularly  known,  yet  as  a  price 
was  to  be  i)resumed,  and  as  the  bargain  was  made  bona  fide,  and  was 
communicated  prior  to  the  commencement  of  hostilities,  there  can  be 
no  pretext  whatever  for  complaint,  nor  is  there  the  least  ground  for 
supposing  that  it  will  take  place." 

Mr.  Madison,  Sec,  of  State,  to  Mr.  Paine  (unofficial),  Aig.  20,  1803;  2  Madison's 
Writings,  18.5. 

H3 


CHAP.  VI.]  FRANCE  :    LOUISIANA    TREATY,  1803.  [§  I486. 

"  It  is  my  duty  to  state,  as  a  cause  of  very  great  regret,  that  very  se- 
rious diflfereuces  have  occurred  in  this  negotiation,  respecting  the  con- 
struction of  the  eighth  article  of  the  treaty  of  1803,  by  which  Louisiana 
was  ceded  to  the  United  States,  and  likewise  respecting  the  seizure  of 
the  Apollo,  in  1820,  for  a  violation  of  our  revenue  laws.  The  claim  of 
the  Government  of  France  has  excited  not  less  surprise  than  concern, 
because  there  does  not  appear  to  be  a  just  foundation  for  it  in  either 
instance.  By  the  eighth  article  of  the  treaty  referred  to,  it  is  stipulated 
that,  after  the  expiration  of  twelve  years,  during  which  time  it  was 
13rovided  by  the  seventh  or  preceding  article  that  the  vessels  of  France 
and  Spain  should  be  admitted  into  the  ports  of  the  ceded  territory 
without  paying  higher  duties  on  merchandise  or  tonnage  on  the  ves- 
sels than  such  as  were  paid  by  citizens  of  the  United  States,  the  ships 
of  France  should  forever  afterward  be  placed  on  the  footing  of  the 
most  favored  nation.  By  the  obvious  construction  of  this  article,  it  is 
presumed  that  it  was  intended  that  no  favor  should  be  granted  to  any 
power  in  those  ports  to  which  France  should  not  be  forthwith  entitled  ; 
nor  should  any  accommodation  be  allowed  to  another  power  on  condi- 
tions to  which  she  would  not  also  be  entitled  on  the  same  conditions. 
Under  this  construction,  no  favor  or  accommodation  could  be  granted 
to  any  power  to  the  prejudice  of  France.  By  allowing  the  equivalent 
allowed  by  those  powers,  she  would  always  stand  in  those  ports  on  the 
footing  of  the  most  favored  nation.  But  if  this  article  should  be  so 
construed  as  that  France  should  enjoy,  of  right,  and  without  paying 
the  equivalent,  all  the  advantages  of  such  conditions  as  might  be 
allowed  to  other  powers,  in  return  for  important  concessions  made  by 
them,  then  the  whole  character  of  the  stipulations  would  be  changed. 
She  would  not  only  be  placed  on  the  footing  of  the  most  favored  nation, 
but  on  a  footing  held  by  no  other  nation.  She  would  enjoy  all  the  ad- 
vantages allowed  to  them,  in  consideration  of  like  advantages  allowed 
to  us,  free  from  every  and  any  cause  whatever." 
President  Mooroe,  Fifth  Annual  Message,  1821. 

"  It  was  agreed  by  the  article  above-mentioned  (Art  VIII  of  the  Louisi- 
ana treaty)  that  the  ships  of  France  should  forever  be  treated  upon 
the  footing  of  the  most  favored  nation  in  the  ports  of  Louisiana. 

"  Vessels  of  certain  foreign  nations  being  now  treated  in  the  ports  of 
the  United  States  (including  those  of  Louisiana)  on  the  same  footing 
with  American  vessels,  in  consideration  of  the  American  vessels  being 
treated  in  the  ports  of  those  nations  on  the  same  footing  with  their  own 
vessels,  France  has  required  that  French  vessels  should,  by  virtue  of 
tlie  said  article,  be  treated  in  the  ports  of  Louisiana  on  the  same  foot- 
ing with  the  vessels  of  those  nations,  without  allowing  on  her  part  the 
consideration  or  reciprocal  condition  by  virtue  of  which  tliose  vessels 
are  thus  treated. 

"The  United  States  contend  that  the  right  to  be  treated  upon  the 
footing  of  the  njost  favored  nation,  when  not  otherwise  defined,  and 
when  expressed  only  in  those  words,  is  that,  and  can  only  1x5  that,  of 
being  entitled  to  that  treatment  gratuitously,  if  su<*h  nation  enjoys  it 

H3 


§  148^.]  TREATIES.  [ciIAr.  Vi. 

jj^ratuitoiisly,  and  on  paying'  the  same  equivalent,  if  it  lias  liecu  granted 
in  consideration  of  an  equivalent.  kSettinj;"  aside  every  collateral  in;it- 
ter  and  subsidiary  ar^iunient,  they  say  that  the  article  in  (juestion,  ex- 
pressed as  it  is,  can  have  no  other  nieaninj^,  is  suscei)til)le  of  no  other 
construction,  ibr  this  ]>lain  and  incontrovertible  reason,  that,  if  the 
French  vessels  weic  allowed  to  receive  gratuitously  the  same  treatment 
which  those  of  certain  other  nations  receive  only  in  couKideration  of  an 
e(|ui\alent,  they  would  not  be  treated  as  the  most  favored  nation,  but 
more  favorably  than  any  other  nation.  And  since  the  article  must 
necessarily  have  the  meauing"  contended  for  by  the  United  States,  and 
no  other,  the  omission  or  insertion  of  \vords  to  define  it  is  wholly  im- 
material, a  detiuiliou  being  necessary  only  when  the  expressions  used 
are  of  doubtful  imi)ort,  and  the  insertion  of  words  to  that  eflect  in  some 
other  treaties,  belonging  to  that  class  of  explanatory  but  su])er(luous 
phrases  of  which  instances  are  to  be  found  in  so  many  treaties. 

"  It  might,  indeed,  have  been  suilicient  to  say  that,  in  ])oiut  of  fact 
there  was  no  most  favored  nation  in  the  United  States;  the  right  en- 
joyed by  the  vessels  of  certain  foreign  nations  to  be  treated  in  the  ]>orts 
of  the  United  States  as  American  Ncssels  in  consideration  of  American 
vessels  receivings  a  similar  treatment  in  the  ports  of  those  nations,  not 
being  a  favor  but  a  mere  act  of  reciprocity. 

''  Let  me  also  observe  that  the  i)retension  of  France  would,  if  ad- 
mitted, leave  no  alternative  to  the  United  States  than  either  to  sutler 
the  whole  commerce  between  France  and  Louisiana  to  be  carried  exclu- 
sively in  French  vessels,  or  to  renounce  the  right  of  making  arrange- 
ments with  other  nations  deemed  essential  to  our  prosi)erity,and  having 
for  object  not  to  lay  restrictions  on  commerce  but  to  remove  them.  If 
the  meaning-  of  the  eighth  article  of  the  Louisiana  treaty  was  such 
indeed  as  have  been  contended  for  on  the  part  of  France,  the  United 
States,  bound  to  fulfill  their  engagements,  must  submit  to  the  conse- 
quences, whatever  these  might  be.  But  this  liaviug  been  i)roven  not 
to  be  the  case,  the  observation  is  made  only  to  show  that  the  United 
States  never  can,  either  for  the  sake  of  obtaining  indemnities  for  their 
citizens  or  from  their  anxious  desire  to  settle  by  conciliatory  arrange- 
ments all  their  differences  with  France,  Int  brought  to  acquiesce  in  the 
erroneous  construction  pnt  upon  the  article  in  question." 

Mr.  Gallatin,  iniuister  to  Frauce,  to  Viscount  do  Chateaubriatid,  Keb.  27,  182:!, 
5  Am.  St.  Pap.  (For.  Rel.),  673. 

As  to  the  "  favorod-natiou  "  clause,  see  supra,  ^  \?>A. 

Much  unpublished  correspondence  in  August  and  September,  IdOii,  between  Mr. 
Monroe  and  Mr.  K.  E.  Livingston,  in  regard  to  the  negotiations  then  pend- 
ing with  France,  is  in  the  Department  of  State  among  the  Madison  and 
Monroe  papers ;  and  also  a  series  of  private  letters  from  Mr.  Livingston 
to  Mr.  Madison,  as  to  the  difl'erences  between  Mr.  Livingston  and  Mr. 
Monroe  a.nd  other  circumstances  of  the  negotiations. 

In  Hunt's  life  of  Edward  Livingston,  805,  the  success  which  attended  tho  ne- 
gotiation for  (he  purchase  of  Louisiana  isattributed  to  the  skill  with  which 
Mr.  R.  R.  Livingston  seized  the  moment  when  Napoleon  was  most  accessible, 
and  when  the  circumstances  wore  most  propitious,  to  press  the  sale.  But, 
as  already  noted,  {supra,  ^  107,)  the  papers  on  file  in  the  Department  of 
State  show  that  it  was  not  until  ;Mr.  Monroe's  arrival  that  final  action  took 
place.  Tlie  motives  on  Napoleon's  part  were  (1)  the  protial)ility  of  a  colli- 
fsion  with  the  United  States  in  case  of  liis  retention  of  Louisiana;  (2)  tlie 
probability  of  the  seizure  of  Louisiana  by  the  British  in  the  approaching 
hostilitit-;,  should  it  be  rt'taiucd  by  l-^rance. 

HA 


CHAP.  VL]  FEANCE  :    LOUISIANA    TREATY,  1803.  [§  1486. 

For  other  published  i)aperson  the  same  toiiic,  see  2  Am.  St.  Pap.  (For.  Kel.),  506^. 

An  account  of  the  negotiations  preceding  the  purchase  of  Louisiana  "will  be  found 
:n  Edward  Livingston's  speech  in  Mav,  18^5,  on  the  Monroe  refunding  bill.  Hunt's 
Life  of  Livingston,  «05.— See  also  1  Phill.  Int.  Law.  (3ed.),  380. 

President  Monroe's  message  of  February  17,  1825,  communicating  correspondence 
as  to  interpretation  of  the  eighth  article  of  the  treaty  ceding  Louisiana,  is  contained 
in  House  Doc.  403,  18th  Cong.,  2d  sess.,  640.     5  Am.'St.  Pap.,  640. 

The  report  in  1838  of  the  House  Committee  on  Public  Lands  on  the  subject  of  the 
final  adjustment  of  all  claims  to  the  land  derived  from  the  former  Government  of 
Spain  in  West  Florida,  as  transferred  to  France,  is  given  in  House  Eep.  818,  28th 
Cong.,  2d  sess.     See  also  House  Eep.  508,  22d  Cong.,  1st  sess. 

In  the  treaty  of  1803  the  United  States  stipulated  that  the  inhabitants 
of  the  ceded  territory  should  be  protected  in  the  free  enjoyment  of  their 
property.  The  United  States  regards  this  stipulation  as  the  avowal  of 
a  principle  which  would  have  been  held  equally  sacred,  though  it  had 
not  been  inserted  in  the  contract.  The  term  "  property,"  as  applied  to 
lands,  comprehends  every  species  of  title  inchoate  or  complete.  It  is 
supposed  to  embrace  those  rights  which  lie  in  contract  j  those  which  are 
executory  as  well  as  those  which  are  executed. 

Soulard  v.  U.  S.,  4  Pet.,  511 ;  Delassus  v.  U.  S.,  9  Pet.,  117. 

The  Stipulation  in  the  treaty  for  the  protection  of  the  inhabitants  in 
their  property,  &c.,  ceased  to  operate  when  Louisiana  was  admitted  into 
the  Union. 

New  Orleans  v.  Armas,  9  Pet.,  223. 

The  treaty  could  not  enlarge  the  constitutional  powers  of  the  United 
States,  and  those  powers  do  not  enable  the  United  States  to  have  or  ex- 
ercise that  police  control  over  public  places  in  the  State  of  Louisiana 
which  belonged  to  the  Crown  of  France  or  of  Spain. 

New  Orleans  v.  U.  S...  10  Pet.,  662. 

All  Spanish  grants  in  Louisiana,  between  November  3, 1762,  and  Octo- 
ber 1,  1800,  are  held  valid  if  made  in  accordance  with  Spanish  law. 

Strother  v.  Lucas,  12  Pet.,  410;  LesBois  v.  Bramell,  4  How.,  449  ;  U.  S.  v.  Moore, 
12  How.,  209. 

Incomplete  Spanish  titles  were  not  rendered  complete  by  the  treaty 
by  which  Louisiana  was  acquired ;  the  Government  of  the  United  States 
succeeded  to  the  powers  and  duties  of  the  Crown  of  Spain  as  to  con- 
firmation of  such  titles,  and  where  there  were  two  adverse  claimants 
might  select  between  them  and  make  a  perfect  title  to  one  and  exclude 
the  other. 

Chouteau  v.  Eckhart,  2  How.,  344.    See  supra,  $$  4,^. 

The  treaty  confirmed  titles  as  they  existed  under  the  local  law. 

McDonough  v.  Millaudon,  3  How.,  693. 

The  treaty  of  cession  was  constitutional,  and  took  eli'ecton  the  day  of 
its  date,  30th  April,  1803.  Its  subsequent  ratification  and  t lie  formal 
transfer  of  possession  have  relation  to  that  date. 

U.  S.  V.  Ecyncs,  9  How.,  127. 
S.  Mia.  102— VOL.  II 10  ^^ 


5^  148c.]  TREATIES.  [CHAP.  VI. 

The  treaty  of  St.  Ildefouso,  between  Spaiu  and  France,  of  the  1st  of 
October,  1800,  deprived  Spain  of  the  power  to  make  grants  of  laud  in 
Louisiana,  if  not  after  its  date,  certainly  after  21st  March,  1801. 
Jbid. 

All  French   fjrants  of  land  in  the  Louisiana  Territory  between  No- 
vember 3,  1702,  the  date  of  the  cession  to  Spain,  and  October  1,  1800, 
the  date  of  the  recession  to  France,  are  inoperative. 
U.  S.  r.  D'Auterivo,  10  How.,  609. 

Under  the  treaty  of  1803  with  I'ranco,  the  United  States  always 
claimed  to  the  Perdido  River  to  the  east,  although  the  Si)anish  authori- 
ties kept  i)Ossession  of,  antl  claimed  sovereignty  over,  tlie  territory  be- 
tween that  river  and  the  Mississippi  (except  the  island  of  New  Orleans), 
until  1810,  when  the  United  States  took  forcible  i)Ossession  of  it.  But 
grants  made  by  Spain  in  the  disputed  territory  whilst  in  possession 
thereof,  were  confirmed  by  act  of  Congress  of  June  22,  1800,  though 
they  were  previously  void. 

U.  S.  V.  Lyndo,  11  Wall.,  G;?2. 

Spanish  grants  made  in  the  territory  between  the  Mississippi  and 
Perdido  Rivers,  after  the  treaty  of  St.  Ildefonso,  1801,  by  which  Spain 
ceded  Louisiana  to  France  were  void,  because  after  that  time  that  ter- 
ritory did  not  belong  to  Spain.  They  were  also  declared  void  by  the 
act  of  March  20,  1804. 
Ibid. 

Spain  in  ceding  the  Floridas  to  the  United  States,  by  the  treaty  of 
February  22,  1819,  ceded  only  so  much  thereof  as  belonged  to  her,  and 
hence  did  not  cede  the  territory  lying  between  the  JNlississippi  and 
Perdido  Rivers,  which  territory,  though  claimed  by  Spaiu,  was  treated 
by  the  United  States  as  already  ceded  by  France. 
Ibid. 

Under  the  provisions  of  the  convention  with  France  of  1803,  the 
United  States  are  not  bound  to  protect  demands  for  freight  where  in- 
dividuals have  transported  articles  for  the  French  Government  or  for 
its  citizens,  since  they  are  within  no  provision  of  the  convention. 

1  Op.,  136  Lincoln,  1803. 

(d)  SUBSEQUENT  TRICATIES. 

§  148c. 

The  convention  with  France  of  June  24, 1822,  with  the  accompanying 
documents,  as  sent  by  President  J.  Q.  Adams,  on  December  10,  1822,  is 
givtMi  in  Senate  Ex.  Doc.  353,  17th  Cong.,  2d  sess.  5  Am.  St.  Pap.  (For. 
Rel.),  149. 

The  pioceedings  in  1833  in  the  French  House  of  Deputies,  on  the 
subject  of  the  treaty  of  1831  between  France  and  the  United  States  aro 
given  in  House  Ex.  Doc.  2,  23d  Cong.,  2d  sess, 

14G 


CHAP.  VI.]  FRANCE.  [§  148c. 

Under  the  act  of  Congress  constituting  a  board  of  commissioners  to 
pass  on  claims  provided  for  by  tbe  treaty  with  France  of  1831  the  de- 
cision of  the  board  between  conflicting  claimants  is  not  conclusive,  and 
the  question  of  their  respective  titles  is  fully  open  to  be  adjudicated  by 
the  courts. 

Frevall  v.  Baclie,  14  Pet.,  95. 

"By  the  treaty  of  July  4,  1831,  France  was  to  pay  25,000,000  francs 
in  full  satisfaction  of  the  American  claims;  the  United  States  were  to 
pay  1,500,000  francs  in  satisfaction  of  certain  French  claims ;  the  United 
States  were  to  reduce  the  duties  on  French  wines  ;  and  France,  in  con- 
sideration of  the  latter  agreement,  was  to  relinquish  its  claims  and 
reclamations  respecting  the  8th  article  of  the  treaty  of  cession  of  Louisi- 
ana. 

"The  ratifications  of  this  convention  were  exchanged  on  the  2d  of 
February,  1832,  and  on  the  13th  of  the  following  July  Congress  passed 
an  act  to  carry  it  into  effect.  It  provided  for  a  commission  to  take  proof 
of  the  claims,  and  also  for  the  agreed  reduction  of  duties  upon  the  wines 
of  France.  Under  this  commission  the  claims  which  had  been  referred 
against  the  jSTetherlands  as  well  as  some  which  had  been  preferred 
against  Naples  and  Spain  were  proved  and  allowed  against  France. 

"The  first  installment  under  this  treaty  was  to  be  paid  at  the  expira- 
tion of  one  year  next  following  the  exchange  of  the  ratifications ;  that 
is,  it  became  payable  on  the  2d  day  of  February,  1833.  But  no  provision 
was  made  for  its  payment;  and  on  the  18th  of  April,  1834,  the  French 
Chamber  of  Deputies,  by  a  vote  of  176  to  1G8,  refused  to  make  the 
appropriations  necessary  to  carry  out  the  provisions  of  the  treaty. 
(See  supra^  §§  133  ff.)  At  the  opening  of  the  2d  session  of  the  23d 
Congress  (December,  1834),  President  Jackson,  after  stating  in  detail 
successive  neglects  of  France  to  make  or  provide  for  the  payments 
under  this  treaty,  said:  'The  executive  branch  of  this  Government 
has,  as  matters  stand,  exhausted  all  the  authority  upon  the  subject 
with  which  it  is  invested,  and  which  it  had  any  reason  to  believe  could 
be  beneficially  employed.  The  idea  of  acquiescing  in  the  refusal  to  ex- 
ecute the  treaty  will  not,  I  am  confident,  be  for  a  moment  entertained 
by  any  branch  of  this  Government;  and  further  negotiation  upon  the 
subject  is  equally  out  of  the  question.'  After  a  discussion  in  the  Senate, 
in  which  Clay,  Webster,  Buchanan,  Calhoun,  Clayton,  and  others  took 
part,  it  was  voted  unanimously, '  it  is  inexpedient  at  present  to  adopt  any 
legislative  measures  in  regard  to  the  state  of  affairs  between  the  United 
States  and  France.'  The  President,  on  the  7th  of  the  following  Febru- 
ary, transmitted  to  the  House  of  Representatives  further  correspondence 
from  Edward  Livingston,  tben  minister  at  Paris ;  and  again  on  the  25th 
of  the  same  month  still  further  correspondence,  by  which  he  said,  '  It 
will  be  seen  that  I  have  deemed  it  my  duty  to  instruct  Mr.  Livingston 
to  quit  France  with  his  legation,  and  return  to  the  United  States,  if  an 
appropriation  for  the  fulfillment  of  the  convention  shall  be  refused  by 
the  Cbambers.'  The  next  day  the  Committee  of  Foreign  Affairs  reported 
to  the  House  respecting  tbe  'relations  with  France.'  There  was  a 
majority  report  and  a  minority  report.  Cambreleng  presented  the 
former;  the  latter  was  signed  by  Edward  Everett,  Kobert  P.  Letcher, 
and  K.  Coulter.  Cambreleng  opened  the  discussion  on  Saturday,  the 
28th  of  February,  with  a  short  speech.  John  Quincy  Adams  followed 
at  length.  Archer,  Pickens,  Cambreleng,  Everett,  Wise,  the  best 
talent  of  the  House,  partici[)ated  in  the  debate.     It  closed  at  night  by 

147 


§  149.] 


TREATIES.  [CUAP.  VI. 


the  adoption  of  a  resolution  that  in  the  opinion  of  the  House  the  treaty 
of  Julj'  4,  1831,  should  be  maintained  and  its  execution  insisted  on,  and 
that  i)repaiations  ought  to  be  made  for  any  emergency  growing  out  of 
our  relations  Avith  Fiance. 

"Livingston  left  Paris  under  instructions  from  the  President,  and 
was  followed  by  Barton,  whom  he  had  left  as  charge  d'airaires.  This 
caused  the  withdrawal  from  Washington  of  l*ageot,  the  French  minis- 
ter, and  the  comi)lete  rupture  of  di[>lonu»tic  relations.  (See  infra,  § 
318.) 

"  On  the  8th  of  February,  183G,  the  President  informed  Congress  that 
the  mediation  of  Great  Britain  had  been  oll'ered  to  adjust  these  diifcr- 
ences.  Some  of  the  proceedings  which  had  taJvcn  phu^e  in  the  Chamber 
of  Peers  in  Paris  may  be  tbund  in  a  message  of  the  loth  of  that  month. 
On  the  t.'2d  the  President. was  able  to  announce  to  Congress  that  the 
French  Government  had  determined  to  execute  the  treaty,  and  that 
the  mediation  had  therefore  become  unnecessary.  {Supra,  §  49;  infra, 
§  318.)  The  payments  of  the  installments  were  duly  made.  Thencefor- 
ward diplomatic  relations  were  resumed,  and  the  last  difiiculty  with 
France,  arising  from  the  wars  of  Napoleon,  disappeared." 

Mr.  J.  C.  B.  Davis,  Notes,  &c.     See  the  proceedings  on  this  treaty  noticed  infra, 

ij  318;  see  also  §  228. 
As  to  privileges  of  consuls  under  consular  convention,  treaty  of  1853,  see  nupra, 

$98. 

By  the  7th  article  of  the  consular  convention  \Yith  France  of  Feb- 
ruary 23,  1853,  the  President  engaged  to  recommend  to  the  particular 
States  "  that  if,  pursuant  to  their  then  existing  laws,  French  subjects 
were  not  then  allowed  to  hold  real  estate  in  any  State,  that  right  might 
be  conferred  on  them." 

Mr.  Fish,  Sec.  of  State  to  the  governor  of  Maine,  May  9,  1870.     MSS.  Dom.  Let. 

The  7th  article  of  the  treaty  with  France  of  1853  has  relation  only 
to  rights  of  inheritance  subsequently  acquired. 
Prevost  V.  Greenaux,  19  Ho^tv.,  1. 

(11)  Germany. 

§  149. 

The  treaty  of  July  11,  1799,  between  the  United  States  and  Prussia, 
which  was  preceded  by  a  correspondence  as  to  neutral  rights,  else- 
where given  {infra,  §§  342,^'.),  reaffirmed  the  rule  of  free  ships  making 
free  goods.  This  treaty,  in  connection  with  that  of  1785,  is  discussed 
in  1  Lyman's  Diplomacy  of  the  United  States,  chap.  v. 

The  treaty  of  1828  with  Prussia  makes  provision  for  the  disposition 
and  succession  of  both  personal  and  real  estate  in  each  country  by  the 
citizens  or  subjects  of  the  other.  Of  this  provision  Mr.  Gushing,  when 
Attorney-General,  held  that  it  is  "a  stipulation  constitutional  in  sub- 
stance and  form,  which,  as  such,  is  the  supreme  law  of  the  land,  and 
which  abrogates  any  incompatible  law  of  either  of  the  States." 

8  Op.,  417,  Gushing,  1857  ;  but  see  supra,  ^  138. 

148 


CHAP.  VI.]  GERMANY.  [§  149 

Wbere  a  detentiou  of  a  Prussian  vessel,  iu  the  port  of  JS'ew  Orleaus, 
during  the  late  civil  war,  was  caused  by  ber  resistance  to  the  orders  of 
the  i)roperly  constituted  authorities,  whom  she  was  bound  to  obey,  slie 
preferring  such  detention  to  a  clearance  upon  the  conditions  imposed, 
it  was  ruled  that  her  owner,  a  subject  of  Prussia,  is  not  entitled  to  any 
damages  against  the  United  States  under  the  law  of  nations  or  the 
treaty  with  that  power  of  1799. 
U.  S.  V.  Diekelman,  92  U.  S.,  520. 

Article  10  of  the  treaty  with  Prussia  of  1828  x^rovides  that  the  con- 
suls, vice-consuls,  and  commercial  agents  of  each  party  "shall  have  the 
right,  as  such,  to  sit  as  judges  and  arbitrators  in  such  differences  as 
may  arise  between  the  cajitains  and  crews  of  the  vessels  belonging  to 
the  nation  whose  interests  are  committed  to  their  charge,  without  the 
interference  of  the  local  authorities,"  subject  to  the  right  of  the  con- 
tending parties  "to  resort,  on  their  return,  to  the  judicial  authority  of 
their  country,"  and  to  the  right  of  the  consuls,  vice-consuls,  and  com- 
mercial agents  to  require  the  assistance  of  the  local  authorities  "to 
cause  their  decisions  to  be  carried  into  efiect  or  supported."  The  crew 
of  a  Prussian  vessel  sued  in  rem^  in  admiralty,  in  the  district  court,  to 
recover  wages  alleged  to  be  due  to  them.  The  master  of  the  vessel 
answered,  denying  the  debt,  invoking  the  protection  of  said  treaty, 
denying  the  jurisdiction  of  the  court,  and  averring  that  the  claim  for 
wages  had  already  been  adjudicated  by  the  Prussian  consul  at  New 
York.  The  consul  also  protested  formally  to  the  court  against  the 
exercise  of  its  jurisdiction.  The  case  was  tried  in  the  district  court, 
and  it  appeared  that  the  consul  had  adjudicated  on  the  claim  for  wages. 
The  district  court  decreed  in  favor  of  the  libellants.  It  was  held  that 
tlie  district  court  had  no  jurisdiction  of  the  case. 

The  Elwine  Krepliu,  9  Blatcli.,  438.     As  to  consular  jurisdiction,  see  siqyra, 
^  124. 

"  Overtures  for  a  treaty  of  commerce  and  navigation  were  made  to 
John  Adams  by  M.  de  Thulemeier,  Prussian  envoy  to  The  Hague,  on 
the  18th  of  February,  1784.  Adams  replied  that  he  'could  do  nothing 
1)ut  in  coccurrence  with  Mr.  Franklin  and  Mr.  Jay,  who  were  at  Paris, 
l)Ut  that  he  thought  he  could  answer  for  the  good  disjjosition  of  those 
gentlemen,  as  \\ell  as  of  his  own.'  Franklin  and  Jay  concurred  in  de- 
siring to  negotiate  such  an  instrument,  and  Adams  i)roposed  to  Thule- 
meier that  the  then  recently  negotiated  treaty  with  Sweden  should  be 
taken  a.s  the  model  of  the  ])roposed  instrument.  Thulemeier  ado])ted 
the  suggestion,  and  in  the  following  April  sent  Adams  a  proj<5t  based 
upon  it,  which  Adams  transmitted  to  the  President  of  Congress. 

"On  the  7th  of  the  following  June  Adams  transmitted  to  the  Presi- 
dent of  Congress  an  account  of  the  negotiations,  with  his  observations 
upon  llie  Prussian  i)rojet.  On  the  .'5d  of  that  month,  however,  Adams, 
I'liinklin,  and  .Iclferson  had  been  investe<l  by  Congress  with  a  general 
j)Ower  to  conchule  treaties  of  amity  and  commerce  with  various  i)ower8 
in  Europe,  among  others  with   Prussia;  and  they  notified  Thulemeier 

149 


§  149.]  TREATIES.  [CIIAP.  VT. 

that  tliey  were  ready  'to  consider  and  complete  the  i»hin  of  a  treaty' 
which  h(!  had  already  transmitted. 

"Thulemeier  communicated  this  to  his  Government,  and  received  a 
'full  power  to  conclude  a  treaty  of  commerce  and  friendship  between 
Prussia  and  the  United  States.'  The  negotiations  were  conducted  with 
great  lajiidity  under  the  circumstances.  Franklin  left  Passy  on  the 
12fh  of  Jnly,  1785,  for  America.  The  1^'rencli  text  of  the  treaty  at  the 
time  of  his  signature  had  not  reached  Paris,  and  he  signed  only  the 
English  text.  The  I'rench  draft  reached  Paris  several  days  later, 
and  was  copied,  by  Jefferson's  directions,  into  the  instruments  which 
l^ranklin  had  signed.  Then  Jeli'erson  signed  the  documents,  and  Short 
took  them  to  Adams,  in  London,  for  his  signature.  Short  then  went  to 
The  IJague  to  secure  Thulemeier's  signature  to  the  treaty,  and  its  ex- 
change. 

*'  On  the  11th  of  JiUy,  1799,  when  this  was  about  to  expire  by  its  own 
limitation,  a  new  treaty  was  concluded  by  John  Quincy  Adams,  at  Ber- 
lin, which  his  father,  the  President,  communicated  to  Congress  on  the 
L*2d  of  November,  1800.  This  also  exi)ired  in  ten  years  from  the  ex- 
diange  of  ratifications,  in  the  midst  of  the  wars  of  Napoleon. 

"  In  1828  a  new  treaty  of  amity  and  commerce  with  Prussia  was  con- 
cluded, which  is  still  in  force.  The  fourteenth  article  makes  provision 
for  the  disposition  and  the  succession  of  both  personal  and  real  estate 
in  each  country  by  citizens  of  the  other.  Attorney-General  Gushing 
said  of  this,  there  '  is  a  stipulation  of  treaty,  constitutional  in  substance 
and  form,  which,  as  such,  is  the  supreme  law  of  the  land,  and  which 
abrogatesany  incompatible  law  of  either  of  the  States.  *  *  *  Inthe 
circumstances  suggested  by  the  Baron  von  Gerolt,  it  is  an  act  of  mere 
dutv  and  of  simple  good  faith  on  our  part  to  assure  him  that  such  is  the 
law'.' 

"This  treaty  conferred  upon  consuls  jurisdiction  over  disputes  be- 
tween masters  and  seamen.  President  Polk,  in  his  annual  message, 
December  2,  1845,  said,  '  The  Prussian  consul  at  New  Bedford  in  June, 
1844,  applied  to  Mr.  Justice  Story  to  carry  into  efiect  a  decision  made 
by  him  between  the  captain  and  crew  of  the  Prussian  ship  Borussia, 
but  the  request  was  refused  on  the  ground  that  without  previous  legis- 
lation by  Congress  the  judiciary  did  not  possess  the  power  to  give  eft'ect 
to  this  article  of  the  treaty.  *  *  ♦  I  have  deemed  it  proper,  therefore, 
to  lay  the  subject  before  Congress,  and  to  recommend  such  legislation 
as  may  be  necessary  to  give  effect  to  these  treaty  obligations.'  No  such 
act  was  i)assed  until  June  11,  18G8.     (See  siipra,  §  124.) 

"  On  the  outbreak  of  the  Franco-German  war,  the  German  minister  at 
Washington  informed  JMr.  Fish  that  ])rivate  property  on  the  high  seas 
was  to  be  exempted  from  seizure  by  Germau  vessels  without  regard  to 
reciprocity.  Mr.  Fish  replied,  'The  Government  of  the  United  States 
receives  with  great  ])leasure  the  renewed  adherence  of  a  great  and  en- 
lightened German  Government  to  the  principle  temporarily  established 
by  the  treaty  of  1785,  and  since  then  advocated  by  this  Government 
whenever  opportunity  has  offered.'     (See  infra,  §  342.) 

"Before  the  formation  of  the  North  German  Union  questions  were 
arising  with  Prussia  respecting  the  compulsory  enlistment  in  the  Prus- 
sian army  of  persons  who  had  become  naturalized  as  citizens  of  the 
United  States.  These  questions  were  intended  to  be  set  at  rest  by  the 
treaty  of  naturalization  vN'ith  the  North  German  Union.  Some  doubts 
still  remaining  as  to  the  proper  construction  of  that  treaty.  Prince 
Bismarck  said,  in  the  Biet,  '  The  gentleman  who  has  last  spoken  fears 

150 


CHAP.  VI.]  GERMANY.  [§  149. 

that  a  person  who  Las  lived  five  years  in  America,  and  been  naturalized 
there,  may  yet,  on  his  return  here,  be  held  to  military  duty.  This  ap- 
prehension I  can  designate  as  perfectly  and  absolutely  unfounded.  The 
literal  observation  of  the  treaty  includes  in  itself  that  those  whom  we  are 
bound  to  acknowledge  as  American  citizens  cannot  be  held  to  military 
duty  in  JSTorth  Germany.  That  is  the  main  purpose  of  the  treaty. 
Whosoever  emigrates  bona  fide  with  the  purpose  ot  residing  permanently 
in  America  shall  meet  with  no  obstacle  on  our  part  to  his  becoming  an 
American  citizen,  and  his  bona  fides  will  be  assumed  when  he  shall  have 
passed  five  years  in  that  country,  and,  renouncing  his  North  German 
nationality,  shall  have  become  an  American  citizen." 

Mr.  J.  C.  B.  Davis,  Notes,  «fec. 

The  naturalization  treaties  with  Germany  are  considered  in  another 
chapter. 

Infra,  $5  173,178,179, 

Under  the  treaty  with  Prussia,  of  18515,  the  forging  of  checks  on  the 
communal  chest  of  Breslau  is  a  crime  for  which  the  mutual  extradition 
of  fugitives  from  justice  is  stipulated. 

G  Op.,  7C1,  Gushing,  1854.    Infra,  §  270. 

The  provisions  of  the  treaty  of  1828  between  the  United  States  and. 
Prussia,  for  the  arrest  and  imprisonment  of  deserters  from  public  ships 
and  merchant  vessels  of  the  res))ective  countries,  applies  to  public  ves- 
sels sailing  under  the  flag  of  the  North  German  Union,  and  deserters 
from  such  vessels. 

12  Op.,  463,  Evarts,  1868. 

A  citizen  of  the  North  German  Confederation  who  becomes  a  nat- 
uralized citizen  of  the  United  States  must  have  had  an  uninterrupted 
residence  of  five  years  in  the  United  States  before  he  is  entitled  to  the 
immunities  guaranteed  by  the  treaty  with  the  Confederation  of  18G8. 
The  recital  contained  in  the  record  of  the  naturalization  proceedings  that 
he  had  resided  continuously  in  this  country  for  more  than  five  years 
will  not  be  regarded  by  the  United  States  as  conclusive  as  to  the  fact 
so  recited. 

13  Op.,  376,  Ackerman,  1871.     See  infra,  U  173  jf. 

A  crime  committed  by  a  Prussian  subject  in  Belgium,  although  jus- 
ticiable in  Prussia,  does  not  come  within  the  provisions  of  the  extradi- 
tion treaty  between  the  United  States  and  Prussia  of  1852. 

14  Op.,  281,  Williams,  1873.     See  infra,  $$  271  Jf. 

A  Prussian  subject  by  birth  emigrated  to  the  United  States  in  1848, 
became  naturalized  in  1854,  and  in  the  following  year  had  a  son  born 
in  Saint  Louis,  Mo.  Four  years  after  the  birth  of  his  son  he  returned 
to  Germany  with  his  family,  including  this  infant  child,  and  became 
domiciled  at  Wiesbaden,  in  Nassau,  where  he  has  continuously  resided. 
Ill  1800  Nassau  b(;came  incorporated  into  the  North  German  Confeder- 
ation.    When  the  son  reache<l  the  age  of  twenty  years  he  was  called 

151 


§  150.]  TREATIES.  [ClIAP.  VI. 

upon  by  tUc  (jeiiiiau  (Joveiiimout  to  report  lor  uiililaiy  duty.  TLere- 
npoii  the  intervention  of  tbe  legation  of  tbe  United  States  was  invoked 
on  the  ground  tliat  the  son  was  a  native  American  citizen.  Under 
article  six  of  the  naturalization  treaty  of  18G8,  between  the  Xortb  Ger- 
man Union  and  the  United  States,  and  according  to  the  American 
rule  declared  in  section  1099  of  the  Revised  Statutes,  the  father  re- 
nounced his  naturalization  in  America  and  became  a  German  subject. 
By  virtue  of  tJie  German  laws,  bis  son,  being  a  minor,  also  acquired 
German  nationality.  Being  domiciled  with  his  father,  and  being  as  a 
minor,  subject  to  him,  according  to  both  German  and  American  law, 
and  receiving  German  protection,  and  declining  to  give  any  assurance 
of  intention  to  return  to  and  reside  in  the  United  States,  tbe  son  dur- 
ing his  minority,  when  in  Germany,  cannot  invoke  the  aid  of  the  Gov- 
ernment of  tbe  United  States.  But  when  be  reaches  tbft  age  of  twen- 
ty-one years  he  may  elect  whether  be  will  return  to  and  take  the 
nationality  of  his  birth,  with  its  duties  and  privileges,  or  retain  tbe 
nationality  acquired  by  tbe  act  of  bis  father. 

15  Op.,  15,  Picrrepout,  1875.  See  on  this  topic  infra,  ^$  18:?^. 
As  to  naturalization  treaties  with  Germany  see  infra,  ^^  171  ff. 
As  to  extradition  treaties,  see  infra,  $^  268^. 

The  presumption  of  abandonment  of  adopted  citizenship  in  tbe 
United  States  created,  under  treaty,  by  a  residence  in  Germany  of 
over  two  years,  is  only  prima  facie,  and  may  be  rebutted  by  proof  of 
an  intention  to  return  to  the  United  States. 

Infra,  $  179. 

(12)  Great  Britain. 

(a)   TREATY  OF   1783.      PEACE. 

§  150. 

Tbe  treaty  of  peace  was  a  treaty  of  partition  of  tbe  British  Empire. 
The  sovereignty  of  the  United  States  over  its  own  territory  was  recog- 
nized by  Great  Britain ;  tbe  sovereignty  of  Great  Britain  over  her  own 
territory  was  recognized  by  tbe  United  States. 

Supra,  $6;  infra,  $  302;  see  Mcllvaine  r  Coxe,  4  Crancb,  409,  cited  infra  in  this 
connection.     See  App.,  vol.  ill,  §  150. 

"  On  tbe  3d  day  of  September,  1783,  Adams,  Franklin,  and  Jay 
signed  at  Paris  tbe  definitive  treaty  of  peace  between  tbe  two  powers. 
The  official  correspondence  connected  with  the  negotiation  of  this  treaty 
has  been  i)riuted  under  the  care  of  Mr,  Sparks. 

"  It  was  provided  by  the  seventh  article  of  each  treaty  that  *  His  Brit- 
annic Majesty  shall,  with  all  convenient  speed,  and  without  causing  any 
destruction,  or  carrying  away  any  negroes  or  other  property  of  tbe 
American  inhabitants,  withdraw  all  his  armies,  garrisons,  and  fleets 
from  the  said  United  States,  and  from  every  port,  place,  and  harbor 
within  the  same.' 

"  But  when  the  British  forces  were  withdrawn  from  J^^ew  York,  on  tbe 
2oth  of  tbe  November  following  the  signature  of  the  definitive  treaty, 

152 


CHAP.  VI.]       GREAT    BRITAIN  :    TREATY    OF    PEACE,  1783.  [§  150. 

they  took  with  tbem,or  seut  iii  advaucc  of  their  withdrawal,  3,000  ne- 
groes, iu  violation  of  the  treaty;  ami  when  Jay  was  commissioned  in 
1794  to  proceed  to  London  to  negotiate  the  treaty  which  bears  his 
name,  British  troops  still  occupied  Detroit,  Mackinaw,  Fort  Erie  (Buf- 
falo), Niagara,  Oswego,  Oswegatchie,  Point  au  Fer,  and  Dutchman's 
Point,  notwithstanding  the  agreement  to  evacuate  them." 

Mr.  J.  C.  B.  Davis,  Notes,  &g. 

The  negotiation  of  this  treaty  is  detailed  iu  1  Lyman's  Diplomacy  of  tlie  U.  S., 
chap,  iv,  and  that  of  Jay's  treaty  in  the  same  volume,  chap.  vi.  See  also 
Mr.  Hamilton  to  Governor  Clinton  June  1,  1783.     8  Lodge's  Hamilton,  HI). 

The  treaty  of  1783  did  not  create  the  boundaries  of  the  then  United 
States  or  the  national  rights  arising  therefrom.  It  merely  recognized 
them  as  they  then  existed.  This  is  eminently  the  case  with  the  north- 
eastern fisheries,  which  the  colonies,  in  connection  with  the  parent  Gov- 
ernment, had  conquered  from  France,  and  which  were  the  appurte- 
nances of  the  colonies,  in  joint  possession  with  the  parent  state.  The 
United  States  continued,  after  the  peace,  to  hold  these  fisheries  in  com- 
mon with  Great  Britain,  subject  only  to  such  mutual  concessions  as  the 
treaty  expressed. 

Ii'/ra,^  302/. 

In  the  London  Diplomatic  Eeview  for  October,  1872  (vol.  xx,  231),  is 
the  following  :  "The  astute  and  resolute  representatives  of  the  United 
States  have  on  every  occasion  shown  a  marked  superiority  over  ours 
in  framing  and  interpreting  treaties,  and  on  the  assertion  or  infringe- 
ment of  rights  iu  which  British  interests  were  concerned;  but  in  no 
instance  have  they  given  a  more  signal  proof  of  their  skill  in  this 
regard  than  they  did  in  that  portion  of  the  treaty  of  1783  which  pur- 
ported to  define  the  territorial  boundary  between  the  mother  country 
and  her  emancipated  colonists." 

As  to  treaty  of  peace  with  Great  Britain,  see  1  John  Adams's  Works,  294,  355, 

359;  3  ibid.,  74, 78, 259, 281, 290, 299  ;  7ihhl.,  119, 143, 1G5, 177, 238,  306,  431, 554, 

562, 570,  606,  610, 639, 645. 649. 
As  to  its  signature  and  ratification,  see  3  John  Adams's  Works,  348,  363-683  ;  8 

ilnd.,  50, 54,  57,  72-9i>,  115, 134, 137, 143, 154, 165, 177, 180, 196,  204,  358 ;  9  ibid., 

521. 

The  correspondence  iu  1792  between  Mr.  Hammond,  the  first  British 
minister  to  the  United  States,  and  Mr.  JetJerson,  Secretary  of  State,  on 
the  alleged  non  execution  of  the  treaty  of  peace  so  far  as  concerns  con- 
fiscation of  loyalist's  estates  and  the  right  of  British  creditors  to  recover 
«lebts  in  the  United  States  is  given  in  1  Am.  St.  Pap.  (For.  Eel.),  193,^. 

Gouverneur  IMorris'  letters  to  President  Washington,  when  on  a  con- 
fidential agencv  of  inquirv  in  England  in  1790,  are  in  1  Am.  St.  Pap., 

By  the  fourth  article  of  the  definitive  treaty  of  peace  between  the 
United  States  and  Great  Britain,  of  the  3d  of  September,  1783,  British 
creditors  were  enabled  to  recover  debts  previously  contracted  to  them 
by  our  (citizens,  notwithstanding  a  payment  of  the  debt  into  a  State 
treasury  had  been  made  <luring  the  war,  under  the  authority  of  a  State 
liiw  of  sequestration. 

Ware  v.  Hylton,  3  Dall.,  199;  .Slah;  of  (Jw)r;ria  r.  I?r;iil.srord,  :;  Diill.,  4,5.  .S<-e 
discuHHion  in  2  Pliill.  Fiil.  I.;i\v  (:\i\  iil.),  I2:i. 

lo3 


§  150.]  TREATIES.  [chap.  VI. 

The  treaty  of  peace  with  Great  Britain  prcveuts  the  operatiou  of  the 
statute  of  limitations  of  Virginia  on  British  debts  which  were  incurred 
before  the  treaty. 

Ilopkirk  V.  Bell,  3  Crauch,  454. 

On  the  execution  of  the  treaty  of  1783,  acknowledging  the  independ- 
ence of  the  United  States,  all  persons,  whether  born  in  the  United 
States  or  otherwise,  who  adhered  to  the  United  States,  were  absolved 
from  their  allegiance  to  Great  Britain,  while  those  who  adhered  to  Great 
Britain  were  British  subjects. 

McIlvo,iue  I'.  Coxe,  4  Crauch,  209. 

The  several  States  which  compose  the  Union,  so  far  at  least  as  regarded 
their  municipal  regulations,  became  entitled,  from  the  time  when  they 
declared  themselves  independent,  to  all  the  rights  o.nd  powers  of  sov- 
ereign States,  and  did  not  derive  them  from  concessions  of  the  British 
King.  The  treaty  of  peace  was  a  recognition,  not  a  grant,  of  the  inde- 
pendence of  those  States.  Hence  the  laws  of  the  several  State  govern- 
ments passed  after  the  Declaration  of  Independence  were  the  laws  of 
sovereign  States,  and  as  such  obligatory  upon  the  people  of  each 
State. 

Ibid.     Sco  supra,  $  6. 

Article  5  of  the  treaty  of  peace  with  Great  Britain  of  1783  saved  the 
lien  of  a  mortgage  upon  confiscated  lands  which  at  the  time  remained 
unsold. 

Higginsoii  v.  Meiii,  4  Cranch,  415. 

The  "interest  in  lands  by  debts"  protected  by  article  5  of  the  treaty 
of  peace  with  Great  Britain  of  1783,  must  be  an  interest  held  as  security 
for  money  at  the  time  of  the  treaty. 

Owings  r.  Norwood's  Lessee,  5  Cranch,  344,     See  App.,  vol.  iii,  §  150. 

As  to  effect  of  the  treaty  of  peace  of  1783  with  Great  Britain,  and  of  treatj'  of 
1794,  in  protecting  titles  of  British  subjects  to  laud  in  Virginia,  sco  Fair- 
fax's Devisee  v.  Hunter's  Lessee,  7  Cranch,  603 ;  Craig  v.  Bradford,  3  Wheat., 
594. 

The  sixth  article  of  the  treaty  of  peace  of  1783  protected  from  forfeit- 
ure, by  reason  of  alienage,  lands  then  held  by  British  subjects. 
Orr  V.  Hodgson,  4  Wheat.,  453. 

The  treaties  of  1783  and  1791  only  protected  titles  in  existence  at  the 
time  the  treaties  were  proclaimed,  and  did  not  operate  on  titles  subse- 
quently acquired.  But  in  the  case  of  titles  existing  at  the  proclaiming 
of  the  treaties  actual  possession  was  not  necessary. 

Blight  V.  Rochester,  7  Wheat.,  535.     See  Shanks  v.  Dupont,  3  Pet.,  242. 

British  subjects  born  before  the  Bevolution  are  incapable  of  inherit- 
ing lands  in  the  United  States,  save  by  force  of  some  treaty. 

Blight  f.  Rochester,  7  Wheat.,  535. 
154 


CHAP.  VI.]       GREAT    BRITAIN  :    TREATY    OF    PEACE,  1783.  [§  150. 

Oorporatious,  under  the  treaties  with  Great  Britain  of  1783  and  1794, 
are  entitled  to  the  same  rights  as  are  natural  persons. 

Society  for  Propag.  Gosjiel  v.  New  Haven,  8  Wheat.,  AC4. 

All  British  grants  of  land  in  the  United  States  made  subsequent  to 
the  Declaration  of  Independence  are  inoperative  under  the  treaty  of 
1783. 

Harcouit  i\  Gaillartl,  12  Wheat.,  523;  supra,  $  5«. 

Under  the  treaty  of  1783  with  Great  Britain,  all  those,  whether  natives 
or  otherwise,  who  then  adhered  to  the  American  States,  were  virtually 
absolved  from  all  allegiance  to  the  British  Crown ;  all  those  who  then 
adhered  to  the  British  Crown  were  deemed  and  held  subjects  of  that 
Crown. 

Shanks  v.  Dupont,  3  Pet.,  242. 

The  United  States,  by  the  treaty  of  1783  with  Great  Britain,  acquired 
the  sovereignty  of  Michigan,  which  was  part  of  the  French  domain  prior 
to  the  conquest  by  Great  Britain  in  1750,  and  as  an  incident  of  such 
sovereignty  succeeded  to  the  prerogatives  of  the  King  of  France  in 
dealing  with  seignioral  estates  for  a  forfeiture  for  non-fulfillment  of  the 
conditions  of  the  fief. 

U.  S.  V.  Eepentigny,  5  Wall.,  211. 

The  term  "  prosecutions,"  employed  in  the  sixth  article  of  the  treaty 
with  Great  Britain  of  1783,  imports  a  suit  against  another  in  a  criminal 
cause,  such  prosecutions  being  conducted  in  the  name  of  the  public,  the 
ground  of  them  being  distinctly  known  as  soon  as  they  are  instituted, 
and  beiog  always  under  the  control  of  the  Government. 

1  Op.,  50,  Bradford,  1794. 

The  correspondence  between  Mr.  Jefferson  and  Mr.  Hammond  opened 
with  a  formal  statement  by  Mr.  Jefferson,  on  November  29, 1791,  of  the 
grievances  of  the  United  States  on  the  nonperformance  of  the  I3ritish 
stipulations  in  the  treaty  of  1783.  "On  the  30th  of  November  Ham- 
mond replied  to  Jefferson's  note  thus:  '  With  respect  to  the  non-execu- 
tion of  the  seventh  article  of  the  definitive  treaty  of  peace  between  His 
Britannic  Majesty  and  the  United  States  of  America,  which  you  have 
recalled  to  my  attention,  it  is  scarcely  necessary  for  me  to  remark  to 
you,  sir,  that  the  King,  my  master,  was  induced  to  suspend  the  execu- 
tion of  that  article,  on  his  part,  in  consequence  of  the  non-compliance, 
on  the  part  of  the  United  States,  with  the  engagements  contained  in 
the  fourth,  fifth,  and  sixth  articles  of  the  same  treaty.  These  two  ob- 
jects are,  therefore,  so  materially  connected  with  each  other  as  not  to 
admit  of  separation,  either  in  the  mode  of  discussing  them,  or  in  any 
sul).sequent  arrangements  which  may  result  iiom  that  discussion.' 

"  Jelfer.son  met  this  on  the  15th  of  December  by  a  note  stating  briefly 
the  American  ])Osition  as  to  the  British  infractions  of  the  treaty  and 
producing  evidence  in  its  support.  This  drew  from  Hammond  an  elab- 
orate rei)ly  on  the  5th  of  March,  1792,  in  which  he  contended  (1)  that  the 
United  States  had  failed  to  execute  tiie  4th  arti(;le  of  the  treaty,  by  not 

155 


§  150.]  TREATIES.  [CIIAP.  VI. 

])reveiitiiig:  the  placing-  of  impedimcuts  in  the  way  of  the  recovery,  in 
sterling',  of  debts  dne  to  British  subjects;  (2)  that  interest  had  notljeen 
allowed  on  judgments  in  favor  of  British  cieditors ;  and  (3),  that  article 
5  had  not  been  carried  into  effect  by  the  TTnited  States,  inasmuch  as 
confiscated  estates  had  not  been  lestored ;  and  that  therefore  'the 
measure  that  the  King  has  adopted  (of  delaying  his  compliance  with 
the  7th  article  of  the  treaty)  is  i)erfectly  justitiable.'  To  this  JefVerson, 
on  the  2!Hh  of  ]May,  1792,  re])lied,  (1)  that  imi)ediments,  within  the 
meaning  of  the  treaty,  had  not  been  thrown  in  the  way  of  the  collection 
of  British  debts  in  the  United  States;  (2)  that  interest  is  not  an  integral 
l)art  of  a  debt  under  British  and  American  law,  and  therefore  it  was 
not  embraced  in  the  treaty;  (3)  that  the  United  States  had  only  under- 
taken in  the  treaty  to  recommend  the  States  to  restore  confiscated  estates, 
and  had  fully  complied  with  that  agreement ;  and  he  showed  conclu- 
sively that  it  was  understood  both  by  the  ministry  and  by  both  houses 
of  Parliament,  when  the  treaty  was  negotiated,  that  the  American  plen- 
ipotentiaries not  only  would  not  agree  to  restore  the  confiscated  estates, 
but  expressed  the  opinion  that  the  States  themselves  would  not  restore 
them,  even  if  recommended  by  Congress  to  do  so;  (4)  that  the  British 
infractions  of  the  treaty,  so  far  from  being  tlie  result  of  alleged  infrac- 
tions by  the  United  States,  preceded  them,  and  were  in  no  way  dependent 
upon  them. 

"More  than  a  year  elapsed  without  a  reply.  Jefferson  then,  on  the 
19th  of  June,  1793,  wrote  Hammond,  asking'  when  one  might  be  ex- 
pected. 'The  subject,'  he  said,  'was  extensive  and  important,  and 
therefore  rendered  a  certain  degree  of  delay  in  the  reply  to  be  expected. 
But  it  has  now  become  such  as  naturally  to  generate  disquietude.  The 
interests  we  have  in  the  western  posts,  the  blood  and  treasure  which 
their  detention  costs  us  daily,  cannot  but  produce  a  corresponding  anx- 
iety on  our  part.'  Hammond  replied  that  as  soon  as  he  should  receive 
instructions  the  reply  should  be  transmitted,  and  added,  '  There  is  one 
passage  in  your  letter  of  yesterday,  sir,  of  which  it  becomes  me  to  take 
some  notice.  The  passage  I  allude  to  is  that  wherein  you  mention  "the 
blood  and  treasure  which  the  detention  of  the  Western  posts  costs  the 
United  States  daily."  I  cannot  easily  conjecture  the  motives  in  which 
this  declaration  has  originated.  After  the  evidence  that  this  Govern- 
ment has  repeatedly  received  of  the  strict  neutrality  observed  by  the 
King's  governors  of  Canada,  during  the  present  contest  between  the 
United  States  and  the  Indians,  and  of  the  disposition  of  those  officers 
to  facilitate,  as  far  as  may  be  in  their  power,  any  negotiations  for  peace, 
I  will  not  for  a  moment  imagine  that  the  expression  I  have  cited  was 
intended  to  convey  the  insinuation  of  their  having  pursued  a  difierent 
conduct.' 

"  Jefferson  made  no  response  to  this.  In  a  few  juouths  he  again  asked 
Hammond  whether  he  was  prepared  to  reply  on  this  subject  of  the  in- 
fractious  of  the  treaty.     No  answer  was  ever  made. 

"  In  the  autumn  of  1793  a  new  question  of  diflFerence  arose.  The  ad- 
miralty instructions  to  British  ships  of  war  and  privateers,  issued  in 
June,  1793,  ordered  the.  seizure  of  all  neutral  vessels  laden  with  corn, 
flour,  or  meal,  destined  for  French  ports,  and  of  all  neutral  vessels, except 
those  of  Denmark  and  Sweden,  attempting  to  enter  any  blockaded  port. 
As  Denmark,  Sweden,  and  the  United  States  were  the  jirincipal  neu- 
tral maritime  powers,  there  was  no  question  as  to  the  vessels  against 
which  the  latter  provision  was  aimed.  When  complaint  was  made  of 
the  order  to  seize  vessels  laden  witli  provisions,  it  was  justified  by  Great 

150 


CHAP.  VI.  J  GREAT    BRITAIN  :    JAy's    TREATY,  1794.  [§  150a. 

Britaiu  ou  the  assumption  that  provisions  were  contraband  of  war. 
Edmund  Eandolpb,  Jefferson's  successor  as  Secretary  of  State,  met  this 
by  saying:  'We  have  hibored  to  cultivate  with  the  British  nation  per- 
fect harmony.  We  have  not  attempted  by  a  revival  of  maxims  which, 
if  ever  countenanced,  are  now  antiquated,  to  blast  your  agriculture  or 
commerce.  To  be  jiersuaded,  as  you  wish,  that  the  instructions  of  the 
8th  of  June,  1793,  are  in  a  couciliatory  spirit,  is  impossible.  And  be 
assured,  sir,  that  it  is  a  matter  of  sincere  regret  to  learn  the  intention 
of  your  Government  to  adhere  to  them,  notwithstanding  our  represent- 
ations, which  utter,  as  we  flatter  ourselves,  the  decent  but  firm  lan- 
guage of  right.' 

"  Under  such  circumstances  President  Washington,  on  the  16th  of 
April,  1794,  sent  a  message  to  the  Senate,  in  which,  referring  to  the 
'  serious  aspect  of  our  affairs  with  Great  Britain,'  he  said :  '  But,  as 
peace  ought  to  be  pursued  with  unremited  zeal,  before  the  last  re- 
source, which  has  so  often  been  the  scourge  of  nations,  and  cannot  fail 
to  check  the  advancing  j)rosperity  of  the  United  States,  is  contem- 
plated, I  have  thought  proper  to  nominate,  and  do  hereby  nominate, 
John  Jay,  as  envoy  extraordinary  of  the  United  States  to  his  Britannic 
Majest3\' 

"  The  nomination  was  confirmed  by  a  vote  of  18  to  8.  Jay's  instruc- 
tions were  dated  the  Gth  of  May,  1794.  He  sailed  from  I^ew  York  on 
the  12th  of  the  same  month." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

Almost  immediately  after  this  conciliatory  step  was  taken,  the  Brit- 
ish governor  of  Canada,  Lord  Dorchester,  made  a  si^eech,  unfriendly  in 
its  character  to  the  United  States,  to  Indians  then  aroused  against  the 
United  States,  and  three  companies  of  a  British  regiment  went  to  the 
foot  of  the  rapids  of  the  Miami,  in  the  southern  part  of  what  is  now  the 
State  of  Ohio,  to  build  a  fort  there.  When  complaints  were  made  of 
these  hostile  acts  the  British  minister  at  Washington  justified  both  as 
defensible  preparations  for  an  actual  state  of  war  about  to  begin 
between  the  two  nations,  and  he  retorted  by  complaining  of  the 
fitting  out  of  French  privateers  in  American  ports,  and  of  the '  uniformly 
unfriendly  treatment  which  His  Majesty's  ships  of  war  *  *  *  ex- 
perienced in  the  American  ports.'  President  Washington,  in  trans- 
mitting the  correspondence  to  both  Houses  of  Congress,  said :  'This 
new  state  of  things  suggests  the  propriety  of  placing  the  United  States 
in  a  posture  of  effectual  preparation  for  an  event  which,  notwithstand- 
ing the  endeavors  making  to  avert  it,  may,  by  circumstances  beyond 
our  control,  be  forced  upon  us.' " 

Ibid.     See  SMiJra,  H  107,  131 /. 

(&)  jay's  treaty  (1794). 

§ loOrt. 

Tlie  full  text  of  the  instructions  to  IMr.  Jay,  and  of  much  minor  corre- 
spondence relative  thereto,  will  be  found  in  1  Am.  St.  Vd]).  (For.  l\el.), 
472  /?'.  Mr.  Jay's  report  of  liis  proceedings  in  P^ngland  is  in  the  same 
volume,  470^.  The  projects  and  counter  projects  of  the  negotiators 
are  given  in  same  volume,  ^Sdff;  see  same  volume,  705,  for  ^Ir.  Ilan- 
dolph's  correspondence  with  Mr.  Jny. 

157 


§  150«.]  TREATIES.  [chap.  VI. 

The  policy  of  President  Washington  in  the  negotiations  which  led  to 
Jay's  treaty  is  given  as  follows  in  instructions  of  September  20,  1794, 
from  Mr.  llandoli)h.  Secretary  of  State,  to  Mr.  Jay:  "It  is  his  (the 
President's)  wish  that  the  characteristics  of  an  American  minister  should 
be  marked  on  the  one  hand  by  a  firmness  against  imj)roper  compliances, 
and  on  the  other  by  sincerity,  candor,  and  prudence,  and  bj'  a  horror 
of  finesse  and  chicanery.  These  ideas,  however,  will  not  opi)Ose  those 
firm  and  temperate  representations  which  you  meditate  should  your 
present  plan  fail.  For  it  is  fair  and  indispensable  in  the  event  of  a  rupt- 
nre  to  divide  the  nation  from  the  Government.''^ 

The  treaty  appears  in  1  Am.  St.  Pap.  (For.  Rel.),  520 _^. 

Sonicof  the  dispiitesin  construction  of  Jay's  treaty  arenoticcdin  1  John  Adams's 

Works,  471,  477,  481  ;  9  ibid.,  18,27,  36,  40,  74,  133. 
Mr.  Pickering's  instructions  to  Mr.  Pinckney  of  Jan.  10,  1797,  as  to  this  treaty, 

arc  published  in  1  Am.  St.  Pap.  (For.  Eel.),  5G1. 
The  proceedings  of  tlie  Senate  and  House  of  Representatives  respectively,  when 

acting  on  Jay's  treaty,  are  discussed  in  a  previous  section.     Supra,  $  131^. 

See  also,  3  Life  of  Pickering,  174. 

Under  article  18  of  this  treaty  an  intention  to  enter  a  blockaded  port 
is  not  cause  for  condemnation. 

Fitzsimmons  v.  Newport  Ins.  Co.,  4  Crancli,  185. 

Jay's  treaty  provided  that  British  subjects  then  holding  lands  in  the 
Territories  of  the  United  States  may  continue  to  hold  them  according  to 
their  respective  titles.  It  has  been  held  by  the  Supreme  Court  of  the 
United  States  that  this  provision  is  part  of  the  supreme  law  of  the  land, 
being  a  constitutional  exercise  of  the  treaty-making  power. 

Fairfax  r.  Hunter,  7  Cranch,  603.     See  supra,  $  138. 

Under  the  9tli  article  of  Jay's  treaty,  by  which  it  is  provided  that 
British  subjects  holding  lauds  in  the  United  States,  and  their  heirs,  so 
far  as  respects  those  lands  and  the  remedies  incident  thereto,  should  not 
be  considered  as  aliens,  the  parties  must  show  that  the  title  to  the  land 
for  which  the  suit  was  commenced  was  in  them  or  their  ancestors, 
when  the  treaty  was  made. 

Harden  v.  Fisher,  1  Wheat,  300. 

A  defeasible  title  to  a  freehold  estate  in  Virginia  being  vested  in  a 
British  subject  during  the  Eevolution,  and  capable  of  being  divested, 
by  the  laws  of  Virginia,  only  by  inquest  of  office,  or  a  legislative  act 
equivalent  thereto,  was  protected  and  confirmed  by  the  9th  article  of 
the  treaty  of  1794,  between  the  United  States  and  Great  Briiian,  though 
the  holder  had  never  become  a  citizen. 

Craig  r.  Bradford,  3  Wheat.,  594. 

To  the  same  effect  as  the  treaty  of  1783  was  the  9th  article  of  the 
treaty  of  1794,  which  also  provided  that,  as  to  the  lands  held  under  it, 
neither  the  British  subjects,  nor  their  heirs  should  be  regarded  as 
aliens.     But  the  term  "heirs"  was  not  meant  to  include  any  persons 

158 


CHAP.  VI.]  GREAT    BRITAIN  :    JAy's    TREATY,  1794.  [§  150a. 

other  than  such  as  were  British  subjects  or  American  citizens  at  the 
time  of  the  descent  cast. 

Orr  V.  Hodgson,  4  Wheat.,  453. 

As  to  construction  of  the  treaty  of  1794,  so  far  as  concerns  title  of  British  sub- 
jects to  lands,  see  further,  Harden  v.  Fisher,  1  Wheat.,  300,  reversing  S.  C, 
1  Paine,  55 ;  Orr  v.  Hodgson,  4  Wheat.,  453  ;  Blight  v.  Rochester,  7  Wheat., 
535  ;  Society  for  Propagation  of  Gospel  v.  Wheeler,  2  Gall.,  105. 

The  commissioners  appointed  in  pursuance  of  the  5th  article  of  the 
treaty  of  1794  must  agree  iu  their  decisions,  and  must  all  subscribe 
their  names  and  attach  their  seals  thereto.  In  case  the  two  original 
commissioners  appointed  under  said  article  disagree  in  the  choice  of 
a  third,  each  is  to  propose  one  person,  and  of  the  two  names  so  pro- 
posed, one  shall  be  drawn  by  lot,  and  neither  of  said  commissioners  has 
a  discretionary  power  to  withhold  his  nominee  or  to  refuse  to  draw  by 
lot  for  the  third  commissioner. 
1  Op.,  66,  Lee,  1796. 

To  insure  the  speedy  and  due  execution  of  the  6th  article  of  the 
treaty  of  1791,  public  officers  should,  when  requested,  furnish  authen- 
ticated copies  of  documents  iu  their  custody,  and  should  assist  in 
bringing  forward  testimony  according  to  the  duties  of  their  several 
stations ;  and  individuals  should  not  refuse  to  give  testimony. 
1  Op.,  82,  Lee,  1798. 

By  the  27th  article  of  the  treaty  of  1794,  a  requisition  from  the  British 
minister  is  not  authorized  unless  the  persons  demanded  are  charged 
with  murder  or  forgery  committed  within  the  territorial  jurisdiction  of 
Great  Britain. 

1  Op.,  83,  Lee,  1798.     See  infra,  $  271. 

The  provision  in  the  23d  article  of  the  treaty  that  "  the  ships  of  war  of 
each  of  the  contracting  parties  shall  at  all  times  be  hospitably  received 
in  the  ports  of  the  other ;  their  officers  and  crews  paying  due  respect 
to  the  laws  and  Government  of  the  country,"  is  merely  declaratory 
of  the  usage  of  nations,  that  hospitality,  which  includes  protection,  is 
to  be  enjoyed  upon  condition  that  the  laws  and  Government  of  the 
country  are  resjjected. 
1  Op.,  87,  Lee,  1799. 

Under  the  treaty  of  1794  goods  and  merchandise  carried  from  any 
place  in  the  territory  of  His  Britannic  Majesty  on  the  continent  of 
America,  by  the  subjects  of  Great  Britain,  into  any  of  the  northern 
districts  of  the  United  States,  are  subject  to  the  same  duties  which 
would  be  payable  by  our  citizens  on  the  same  goods  imported  from  the 
same  place  in  American  ships  into  the  Atlantic  ports  of  tlie  United 
States. 

I  Op.,  155,  Breckinridge,  1808. 

150 


^N  150a.]  TREATIES.  [CHAP.  VI. 

The  provisiou  in  the  3d  article  of  the  treaty,  rehiting  to  the  duties  ou 
goods  and  merchandise,  does  not  extend  to  tonnage  duties,  nor  does 
the  treaty  extend  any  dispensation  to  the  subjects  of  Great  Britain 
from  the  huvs  of  the  United  States,  ^vhich  regulate  the  trade  and  in- 
tercourse of  our  own  citizens  with  the  Indian  tribes. 
Jbid. 

Under  the  second  article  of  the  treaty  of  1794  a  British  subject,  held 
to  have  elected  to  become  a  citizen  of  the  United  States  by  remaining 
therein,  without  having  declared  his  intention  to  continue  to  be  a  British 
subject,  did  not  become,  ipso  facto,  a  citizen  of  the  United  States.  He 
could  do  so  only  by  becoming  naturalized  in  accordance  with  section  2 
of  the  act  of  29th  January,  1795  (1  Stat.,  414). 

5  Op.,  715,  Appendix,  Wirt,  1819.     See  infra,  U  187-8. 

"  Your  letter  of  the  lOth  instant  has  been  received.  It  asks  whether 
there  was  in  1872  any  treaty  between  the  United  States  and  Great  Brit- 
ain relative  to  the  inheritance  of  lands  situated  in  this  country  by  Brit- 
ish subjects. 

"  The  only  provision  found  in  any  treaty  between  the  United  States 
and  Great  Britain  touching  this  point  is  in  the  ninth  article  of  the  treaty 
of  1794,  whereby  it  was  agreed  that  'British  subjects  who  now  hold 
lands  in  the  Territories  of  the  United  States,  and  American  citizens 
who  now  hold  lands  in  the  dominions  of  His  Majesty,  shall  continue  to 
hold  them  according  to  the  nature  and  tenure  of  their  respective  estates 
and  titles  therein  ;  and  may  grant,  sell,  or  devise  the  same  to  whom 
they  please  in  like  manner  as  if  they  were  natives ;  and  that  neither 
they  nor  their  heirs  or  assigns  shall,  so  far  as  may  respect  the  said  lands 
and  the  legal  remedies  incident  thereto,  be  regarded  as  aliens.' 

"  The  operation  of  this  stipulation  is  limited  to  lands  held  in  the 
United  States  and  Great  Britain  respectively,  in  1794,  and  as  to  the  sub- 
sequent title  to  lands  so  held  at  that  time,  the  effect  of  the  treaty  may 
be  deemed  permanent. 

"  Permit  me  to  refer  you  to  the  cases  of  Shanks  and  others  against 
Dupont  and  others,  3  Pet.,  242,  and  to  New  York  v.  Clarke,  3  Wheat.,  1, 
for  legal  decisions  as  to  the  construction  of  the  9th  article  of  the 
treaty. 

"The  treaty  of  1794,  however,  is  held  by  the  highest  authorities  to 
have  actually  lapsed  by  reason  of  the  subsequent  state  of  war  in  181 2-'lo, 
and  neither  the  treaty  of  Ghent  nor  any  treaty  between  the  two  coun- 
tries since  then  has  re-enacted  its  provisions  in  whole  or  part. 

"  There  is,  therefore,  no  treaty  engagement  of  any  character  be- 
tween Great  Britain  and  the  United  States,  which  would  give  to  the 
subjects  or  citizens  of  the  respective  countries  the  original  right  to  ac- 
quire since  1794  any  real  property  by  inheritance  or  purchase,  except 

IGO 


CHAP.  VI. J  GREAT    BRITAIN:    JAy's    TREATY,  1791.  [§  1  50rt. 

in  accordauce  with  the  laws  of  the  State  or  Territory  where  the  property 
is  situated." 

Mr.  Bayard,  Sec.  of  State,  to  Messrs.  L.  and  E.  Lehman,  June  23,  1885.     MSS. 
Dom.  Let. 

The  objects  in  view  in  opening  a  negotiation  with  Mr.  Jay,  as  special 
envoy,  were  as  follows : 

(1)  The  vacating  by  the  British  authorities  of  the  border  posts  on 
United  States  territory,  including  Fort  Erie,  Detroit,  Oswego,  and 
Michiliinackinac,  which  they  still  held  in  defiance  of  the  treaty  of 
peace,  and  which  they  used,  not  merely  to  retard  the  progress  of  United 
States  settlement  in  those  quarters,  but  to  keep  the  adjacent  Indian 
tribes  in  subjection  to  Great  Britain  and  in  hostility  to  the  United 
States.    Infra^  §  150.     See,  also,  svjjra,  §  107. 

(2)  The  recognition  of  the  maxim  "Free  ships  make  free  goods." 

(3)  The  establishing  of  a  restricted  system  of  contraband. 

(4)  The  placing  of  Great  Britain  on  a  position  of  equality  with  France 
so  far  as  concerns  belligerent  rights,  and  so  far  as  it  could  be  done  con- 
sistently with  the  treaty  with  France. 

(5)  The  surrender  of  impressment. 

(6)  The  opening  of  the  West  India  trade. 

(7)  The  surrender  of  the  rule  that  no  trade  could  be  allowed  to  a 
neutral  in  war  which  he  could  not  carry  on  in  peace. 

(1)  The  first  of  these  proposed  concessions  was  the  only  one  which 
was  obtained,  and  it  was  granted  in  a  way  peculiarly  nngracious. 
The  treaty  of  peace  required  an  immediate  surrender  of  these  posts. 
Great  Britain  refused  to  surrender  them,  and  made  them  the  basis  ot 
unjustifiable  encroachments  on  the  United  States.  Jay's  treaty  not 
only  condoned  this  outrage,  but  permitted  the  posts  to  be  held  by 
Great  Britain  until  June,  1796. 

(2)  So  far  from  "free  ships  and  free  goods"  being  recognized,  it  was 
agreed,  in  gross  contravention  of  the  treaty  of  alliance  with  France, 
that  French  goods  in  United  States  merchant  vessels  should  be  sub- 
ject to  seizure  by  Great  Britain. 

(3)  So  far  from  the  list  of  contraband  being  restricted,  it  was  ex- 
panded so  as  to  include  "  timber  for  ship-building,  tar  or  rosin,  copper 
in  sheets,  sails,  hemp,  and  cordage,  and  generally  whatever  may  serve 
directly  to  the  equipment  of  vessels,  unwrought  iron  and  fir  planks 
only  excepted  ; "  and  this  was  followed  by  the  statement  that  provis- 
ions could  be  confiscated,  subject  to  a  right  on  the  part  of  the  own- 
ers to  claim  payment  at  a  rate  to  be  fixed  at  the  British  port  to  which 
the  vessel  was  taken,  a  right  which,  of  course,  turned  out  to  be  illusory. 

(4)  So  far  from  Great  Britain  being  raised  by  the  treaty  to  equal 
])rivileges  with  France,  she  was,  by  virtue  of  her  maritime  supremacy, 
given  advantages  over  France  which  virtually  destroyed  those  to 
which  France  was  entitled  by  treaty.  Thus,  while  France,  by  treaty, 
was  precluded  from  seizing  British  goods  when  in  United  States  ves- 
sels, Great  Britain,  on  the  other  hand,  was  permitted  to  seize  French 
goods,  or  goods  going  to  France,  on  United  States  vessels,  and  even 
to  seize  United  States  provisions  going  on  United  States  vessels  to 
France  or  French  colonies,  as  contraband.  The  stipulation  for  com- 
pensation for  such  seizures,  even  if  it  had  been  carried  out,  which  it 
was  nr)t,  woiUd  have  been  no  relief  to  France,  since  the  result  was  to 

S.  Mis.  1(;2— VOL.  II 1 1  1^1 


§  150a.]  TREATIES.  [chap.  VI. 

advance  the  British  scheme  of  starviujr  the  Freuch  population,  provis- 
ions sent  from  th<.'  T"^nit«'(l  States  to  Franco  and  to  French  colonies 
bein^-  in  this  wiiy  carried  to  ICnjiland.  Article  XXI,  also,  ])reclu(linft- 
citizens  of  the  United  States  from  servin<2^  under  Fiance,  and  ])i()vid- 
in^  tliat  if  a  citizen  of  the  United  States  slionUl  take  a  commission 
to  act  as  a  Fri'iiih  privateer  he  could  be  treated  by  (Jreat  Britain  as  a 
])irate,  was  as  much  in  conllict  with  the  law  of  nations  as  with  the  treaty 
of  alliance  with  France.  And  this,  as  well  as  the  ])rior  articles,  was 
in  conllict  with  the  guarantee  jjiven  by  the  United  States,  for  a  con- 
sideration un(]uestionably  sullicient,  of  the  West  India  possessions  of 
France. 

(5)  Impressment  was  not  surrendered. 

(())  Allhouiih  Jay's  instructions  required  him  to  sij;n  no  treaty  which 
did  not  in  some  nieasureo])en  the  West  India  trade,  tlie  treaty  hesigned 
o])ened  that  tiadeonly  to  United  States  vessels  of  70  tons,  whose  cargoes 
had  been  received  in  jjortsof  the  United  States.  This  concession,  how- 
ever, was  more  than  neutralized  by  the  admission  of  British  vessels  of 
any  tonnage  to  the  United  States  jjorts  for  West  India  commerce;  and 
then  it  was  made  useless  by  the  condition  tliat  United  States  vessels 
should  not  transport  to  any  foreign  country  except  Great  Britain,  su- 
gar, cotton,  coffee,  or  nu)lasses.  The  only  excuse  otfered  for  this  last 
extraordinary  condition  was  that  INlr.  Jay  was  not  aware  (though  Lord 
Grenville,  wJio  negotiated  the  treaty  with  him,  was)  that  cotton  was, 
or  could  be,  ])roduced  in  the  United  States. 

(7)  The  rule  that  there  should  be  no  trade  by  the  United  States  in 
war  with  ports  with  which  she  could  not  trade  in  peace  was  not  sur- 
rendereil. 

It  is  true  that  the  treaty  ])rovided  for  a  commission  to  determine  the 
indemnity  due  for  prior  British  spoliations  of  United  States  commerce. 
But  for  this  a  price  was  ])aid  vastly  exceeding  the  value  of  any  spolia- 
tion indemnity  that  could  i)ossibly  have  been  received.  Aside  from  the 
enormous  concessions  above  stated  we  bound  ourselves  to  assume  in  a 
mass  British  debts,  many  of  which  were  incapable  of  proof.  It  is  true 
that  United  States  vessels  were  allowed  under  the  limitation  specified 
above,  to  trade  with  the  West  Indies,  but  they  were  shut  out  from  the 
East  India  coasting  trade,  and  United  States  merchants  were  not  per- 
mitted to  make  East  Indian  settlements.  The  United  States,  "  in  re- 
turn for  so  paltry  a  favor,  0|)ened  all  the  ports  she  controlled,  and  sur- 
rendered her  own  commercial  advantages  in  the  existing  war  with  scarce 
a  qualilication."     (1  Schouler's  Uist.  U.  S.,  292.) 

As  to  action  of  Congress  on  this  treaty,  see  supra,  §§  131  //*. 

Objectionable,  however,  as  was  the  treaty,  its  ratitication,  if  the  al- 
ternative was  war  with  England,  may  have  been  the  more  i)rudent 
course.  And  it  must  be  remembered  President  Washington  may  have 
had  fuller  information  as  to  the  preparation  of  the  country  for  war  than  is 
l)oss('ssed  by  us,  and  more  accurate  knowledge,  also,  of  the  intentions  of 
the  British  Government.  But  the  perils  of  rejecting  the  treaty  do  not 
make  its  terms  less  overbearing  and  unfair. 

"  That  Mr.  Jay's  treaty  was  a  bad  one,  few  persons  even  then  ven- 
tured to  dispute.  Xo  one  would  venture  on  its  merits  to  defend  it 
now.  There  has  been  no  moment  since  1810  when  the  United  States 
would  have  hesitated  to  prefer  war  rather  than  peace  on  such  terms. 
Xo  excuse  in  the  tem])orary  advantages  gained  can  wholly  palliate  the 
con(;essions  of  [)rinciple  which  it  yielded,  and  no  considerations  of  a 

1G2 


CIlAl'.  VI.]  GREAT    BRITAIN.  [§  150^. 

possible  war  with  Eugland  averted  or  postponed,  can  blind  history  to 
the  fact  that  this  blessing  of  peace  was  obtained  by  the  sacrifice  of  na- 
tional coDsistency  and  by  the  violation  of  neutrality  toward  France. 
The  treatj'  recognized  the  right  of  Great  Britain  to  capture  French 
property  in  American  vessels,  whilst  British  property  in  the  same  situ- 
ation was  protected  by  our  previous  treaty  with  France,  and,  what  was 
worse,  the  acl^nowledgment  that  provisions  might  be  treated  as  contra- 
band, not  only  contradicted  all  our  principles,  but  subjected  the  United 
States  Government  to  a  charge  of  a  mean  connivance  in  the  British 
effort  to  famish  France,  m  hile  securing  America  from  pecuniary  loss." 

Adams'  Gallatin,  158.     See  App.,  vol.  iii,  $  150a. 

On  October  24, 1803,  Mr.  Jefferson  submitted  to  the  Senate  a  conven- 
tion, signed  on  ]\Iay  12, 1803,  between  Lord  Hawkesbury  and  Mr.  King, 
setthng  the  northeastern  and  northwestern  boundaries.  The  Senate 
assented  to  this,  with  the  understanding  that  the  fifth  article,  provid- 
ing for  a  joint  survey  of  the  course  and  bearings  of  the  Upper  Missis- 
sippi be  thrown  out.  The  British  Government  did  not  concur,  and  in 
consequence  ratifications  were  not  exchanged.  Tliis  convention,  with 
the  correspondence  preliminary  thereto,  is  given  in  2  Am.  St.  Pap.  (For. 
Eel.),  382,  584  ff. 

As  to  this  couvcution,  see  discussion  by  Mr.  Monroe,  minister  to  England,  in 
dispatch  of  June 3,  1804.     3  Am.  St.  Pap.  (For.  Rel.),  93. 

(C)  MONJROK-PIXKNEY  AND   COGXATE  NEGOTIATIOXS. 

§  150&. 

j\Iany  of  the  informal  confidential  documents  connected  with  the  nego- 
tiations in  London  in  1806  are  among  the  Monroe  Papers  deposited  in  the 
Department  of  State.  These  papers  show  that  Mr.  Fox,  who  took  the 
head  of  the  department  of  foreign  affairs  on  the  accession,  after  Mr.  Pitt's 
death,  of  the  Fox-Grenville  ministry  to  power,  showed  a  conciliatory  dis- 
position towards,  and  a  great  desire  to  effect  a  permanent  peace  with,  the 
Uuiied  States.  He  stated  at  the  outset  that  he  was  embarrassed  by  the 
recent  adoi)tion  by  Congress  of  the  importation  act.  JVIr.  Monroe  re- 
plied that  this  bill  had  passe  d  while  Mr.  Pitt  was  in  power,  and  when 
measures  antagonistic  to  the  Uuited  States  were  passed  with  increasing 
rigor,  but  that  he  had  no  doubt  that,  if  a  more  liberal  course  was 
adopted  in  England,  Congress  would  recede  from  its  position  of  retalia- 
tion. Before,  however,negotiations  had  materially  advanced,  Mr.  Fox's 
illness  increased  so  far  as  to  make  his  withdrawal  from  active  business 
essential;  and  with  this  withdrawal  departed  the  hopes  of  Mr.  Mon- 
roe and  of  Mr.  Piiikney  of  that  bold  conciliatory  action  by  the  ministry 
which  required  tlie  aid  of  ]Mr.  Fox's  genius  and  generosity  to  secure  its 
adoption.  L^pon  Mr.  Fox's  illness,  the  negotiation  on  the  British  side 
was  ])laced  in  the  hands  of  Lord  Auckland,  whose  prior  associations 
involved  him  in  Mr.  Pitt's  policy,  and  Lord  llowick,  afterwards  Earl 
Grey,  who  seems  to  have  left  the  lead  in  the  corresi)ondence  to  Lord 
.Auckland.  The  position  taken  in  their  conferences  by  the  American 
<'nvoys  was  that  impressment,  being  the  exercise  of  a  merely  municipal 
power,  could  no^  be  enforced  extraterritorially.  Lord  Anckland,  on  the. 
other  hand,  falling  back  on  the  doctrine  of  indissoluble  allegianc(>, 
urged  that  the  King  had  the  right  at  any  time  and  in  any  place  to  call 
on  the  services  of  his  subjects  to  aid  him  in  war;  and  that  neutral 

1G3 


§  1506.]  TREATIES.  [chap.  YI. 

mercliaut  sliii)s  were  not  to  be  regarded  as  neutral  territory  to  such 
an  extent  as  to  preclude  tbeir  visitation  and  search  by  liritish  ollicers 
in  quest  of  British  subjects.  Backed  in  this  ])osition  by  the  Crown  hiv^ 
officers,  the  British  commissioners  declared  that  they  could  not  assent 
to  a  solemn  surrender  of  this  ri<iht,  but  that  they  would  be  willinjij  to 
discuss  any  conii)roinise  by  which  the  matter  could  be  adjusted  satis- 
factorily to  both  nations.  Mr.  jMonroe  suji'gested  that  the  (joverniiient 
of  the  United  States,  as  an  equivalent,  shouhl  undertake  to  retmn  to 
r)ritish  ships  all  sailors  who  had  deserted  from  such  ships.  The  counter 
project  of  the  British  commissioners  was  that  statutes  should  be  adopted 
in  the  United  States  makin*?  it  penal  for  United  States  oflicers  to  jjive 
certificates  of  citizenship  to  British  subjects,  and  in  Great  liritain  mak- 
in*;  it  i)enal  for  British  othcers  to  imi)ress  citizens  of  the  United  States. 
The  objection  to_this  by  the  American  envoys,  an  objection  tiiey  held 
to  be  insu])erable,  was  that  it  prejudiced  more  or  less  seriously  the 
rif^ht  of  expatriation.  The  British  commissioners  then  said  that  while 
not  ])repared  explicitly  to  surrender  the  right  of  impressment,  reserv- 
ing the  question  for  future  discussion,  yet  that  there  should  be  an 
understanding  between  the  Governments  that  this  prerogative  should 
only  be  exercised  on  the  most  extraordinary  contingencies;  that  in- 
structions should  be  given  to  British  commanders  to  act  with  the  ex- 
tremest  caution  even  when  such  emergencies  should  occur ;  and  that 
l)rompt  re-dress  should  be  given  if  any  abuse  of  the  i)rerogative  should 
be  shown.  JNIr.  Monroe  and  Mr.  Pinkney  being,  by  this  suggestion, 
left  in  a  ])ositiou  of  either  disobeying  their  instructions  or  of  giving  up 
all  hopes  of  a  treaty,  determined  to  accei)t  the  treaty  with  this  modi- 
tication,  though  with  a  hesitancy"  and  distrust  wliich  is  abundantly 
evidenced  by  the  private  correspondence  among  ]\Ir.  Monroe's  papers. 
The  final  reason  on  their  part  was  that  if  they  erred  in  thus  accepting 
the  treaty,  the  error  could  be  readily  corrected  at  Washington  ;  if  they 
erred  in  rejecting  the  treaty  and  left  London,  the  error  was  irremedia- 
ble. They  stated,  therefore,  to  the  British  commissioners  that  if  they 
accepted  the  proi)Osed  compromise  it  was  on  their  own  reponsibility, 
the  question  being  reserved  for  revision  at  Washington.  'J'he  British 
commissioners  on  their  part  conceded  to  American  vessels  the  right, 
denied  to  them  by  recent  rulings  in  the  admiralty  court,  of  carrying 
European  goods,  not  contraband  of  war,  to  any  belligerent  colony  not 
blockaded  by  British  ships,  provided  such  goods  were  American  prop- 
erty, and  had  previously  been  landed  in  the  United  States,  paying  a 
duty  of  at  least  one  per  cent,  above  what  was  refunded  on  rcexpoita- 
tion.  The  produce  of  such  colonies  also,  by  the  same  proposal,  might, 
if  not  contraband  of  war,  be  brought  into  the  United  States,  and,  if 
it  had  paid  a  duty  of  two  per  cent,  above  drawback,  be  exported  to 
European  belligerent  non-blockaded  ports. 

When  the  treaty  arrived  at  Washington  IMr.  Jefferson  was  for  a  time 
in  doubt  as  to  he  position  to  take.  lie  had  been  vehemently  attacked 
for  his  peace  tendencies.*     Ilis  associations,  either  personal  or  political, 

*  "I  have  been  for  o.  loug  time,"  said  Mr.  Quincy,  then  the  leading  representative  of 
New  England  federalism,  in  a  speech  on  January  19,  1809,  "a  close  observer  of  what 
has  been  done  and  said  by  the  majority  of  this  House,  and,  for  one,  I  am  satisfied  that 
no  insult,  however  gross,  offered  to  us  by  either  France  or  Great  Britain,  could  force 
this  majority  into  a  declaration  of  war.  To  use  a  strong  but  common  expression,  it 
could  not  1)6  kicked  into  such  declaration  by  either  nation."  Quincy's  Speeches. 
143.  See,  further,  as  to  Mr.  Monroe's  position,  and  as  to  the  negotiations  at  the  same 
time  in  Washington,  supra,  ^  107. 

1G4 


CHAP.  VI.]  GREAT    BRITAIN.  [§  150?;. 

had  not  beenwitli  the  shiiiping  interests,  and  for  tins  very  reason  be  felt 
himself  peculiarly  distrustful  of  any  measures  which  might  sanction  a 
claim  so  odious  to  those  interests  as  was  that  of  impressment.  Before 
he  received  information  that  the  American  envoys  had  agreed  to  the 
treaty,  while  they  were  supposed  at  Washington  to  be  still  hesitating  as 
to  its  acceptance,  Mr.  Madison  wrote  to  them,  both  officially  and  confi- 
dentially, not  to  hazard  the  concession.  The  concession  was  made,  and 
Mr.  Madison's  private  correspondence  shows  how  reluctant  both  he  and 
Mr.  Jefferson  were  to  overrule  it.  Mr.  Jefferson,  in  his  subsequent  let- 
ters to  Mr.  Monroe,  speaks  of  his  final  non-acceptance  of  the  treaty  as 
an  act  peculiarly  painful  to  himself.  Xo  one  can  study  Mr.  Monroe's 
unpublished  writings  without  seeing  that  the  scar  remained  with  him 
through  his  whole  life,  and  that  the  remembrance  of  his  action  in  1807 
in  agreeing  to  what  he  believed  to  be  the  dropping  of  impressment  by 
ignoring  it,  was  vivid  in  his  memory  when  he  submitted  to  the  same 
method  of  disposing  of  the  question  by  the  commissioners  at  Ghent  in 
1814.  But  there  is  this  distinction  :  in  1807  impressment  was  impliedlj'^ 
recognized  in  the  British  proposals  by  the  very  restrictions  placed  on  it. 
In  1814  it  was  dropjied  out  of  sight. 

The  apparent  acquiescence  in  impressment  was  the  controlling  rea- 
son— aside  from  the  fact  that  the  treaty  was  in  conflict  with  instructions — 
in  Mr.  Jefferson's  mind  for  its  rejection.  It  was  said  at  the  time  that 
the  treaty  was  killed  by  Mr.  Madison  from  his  jealousy  of  Mr.  Monroe. 
The  correspondence,  unpublished  as  well  as  published,  of  Mr,  Jefferson, 
Mr.  Madison,  and  Mr.  Monroe  gives  no  trace  of  such  jealousy.  Mr.  Madi- 
son's letters  show  throughout  the  greatest  anxiety  that  Mr.  Monroe's 
mission  should  succeed.  Mr.  Jefferson,  in  withholding  the  treaty  from 
the  Senate,  followed,  as  the  papers  show,  his  own  counsels,  and  it  is 
impossible,  on  reading  the  correspondence,  not  to  see  that,  so  far  from 
desiring  to  injure  Mr.  Monroe  being  one  of  his  motives,  his  peculiar  af- 
fection for  Mr.  Monroe  was  one  of  the  chief  grounds  for  his  hesitancy. 

Mr.  Jefferson,  in  his  annual  message  in  October,  1807,  gave  the  follow- 
ing reasons  for  non-acceptance  of  the  treaty :  "  Some  of  the  articles  might 
have  been  admitted  on  a  principle  of  compromise,  but  others  were  too 
highly  disadvantageous;  and  no  sufficient  provision  was  made  against 
the  ])rincipal  source  of  the  contentions  and  collisions  which  were  con- 
stantly endangering  the  peace  of  the  two  nations." 

The  body  of  the  correspondence  between  Messrs.  Monroe  and  Pink- 
ney,  ministers  to  London  in  1806,  with  the  British  ministry,  is,  with 
their  instructions,  on  file  in  the  Department  of  State.  A  portion  of  it, 
however,  was  destroyed  with  other  papers  at  the  burning  of  Washing- 
ton by  the  British  in  1814.  The  gap  is  filled  in  part  from  the  private 
papers  of  Mr.  ^Madison  and  Mr.  Monroe,  now  deposited  in  the  Depart- 
ment, in  part  from  publications  at  the  time  made  by  the  British  Gov- 
ernment, in  part  from  Congressional  publications  reprinted  in  3  Am. 
St.  Pap.  (For.  Eel.),  119,  U3ff. 

In  the  latter  work,  pp.  142,  ICO,  is  given  the  exposition  of  their  course 
by  Messrs.  Monroe  and  Piukney,  January  8  and  April  22,  25, 1807,  with 
Mr.  Madison's  replies.  As  this  correspondence  relates  to  questions  now 
finally  settled,  it  is  not  necessary  here  to  do  more  than  to  refer  to  it  by 
title.  Mr.  Monroe's  letter  to  the  Secretary  in  vindication  of  the  treaty 
is  given  in  3  Am.  St.  Pap.  (For.  llel.),  173.  The  question  is  also  dis- 
cus.sed  in  2  Lyman's  Diplomacy  of  the  U.  S.,  ch.  i;  and  see  S2ipra,  §  131, 
as  to  treaty  making  power;  and  supra,  §  107,  as  to  personal  relations  of 
the  negotiators. 

1G5 


§  IbOh.]  TREATIES.  [OITAP.  Vi 

"IVriiiit  1110  to  remark  that  you  arc  luuli'i  a  uii.slaUc  in  fsiipi)o«in^- 
that  the  treaty  conchulcd  by  Messrs.  Monroe  and  Pinkney  was  rejected 
because  it  did  not  provide  that  free  sliips  sliouhl  make  free  goods.  It 
uever  was  required  nor  expected  that  such  a  sti[)uhitioTi  should  be  in- 
serted. As  to  deserting  seamen  you  will  lind  that  (Jreat  Britain  prac- 
tices against  us  the  principles  we  assert  against  her,  and  in  fact  goes 
further;  that  we  have  always  been  ready  to  enter  into  a  convention  on 
that  subject,  founded  on  reciprocity;  and  that  the  documents,  long- 
since  in  print,  show  that  wo  are  willing,  on  the  subject  of  impressment, 
to  put  an  end  to  it,  by  an  arrangement  which  most  certainly  would  be 
better  for  the  British  navy  than  that  ofl'ensive  resource,  and  which 
might  be  so  managed  as  to  leave  both  parties  at  liberty  to  retain  their 
own  ideas  of  right.  Let  me  add  that  the  acce])tance  of  that  would 
have  very  little  changed  the  actual  situation  of  things  with  Great  Brit- 
ain. The  orders  in  council  would  not  have  been  prevented,  but  rather 
placed  ou  stronger  ground;  the  case  of  the  Chesapeake,  the  same  as 
it  is;  so  also  the  case  of  impressments  of  factitious  blockades,  etc.,  all, 
as  at  present,  pregnant  sources  of  contention  and  ill  humor. 

Prosiclent  Madison  to  Mr.  Joy  (11000201.111,  Jan.  17,  1810.     2  Madison's  Writ- 
iugs,  4G7. 

In  a  private  letter  from  IMr.  Jefferson  (President)  to  Mr.  Monroe, 
March  21),  1SU7,  Mr.  Jefiersou,  commenting  on  the  conduct  of  the  press 
in  reference  to  the  Monroe-Pinkuey  treaty  (which  he  withheld  from  the 
Senate),  speaks  of  part3'  eftbrts  "  to  sow  tares  between  you  and  me, 
as  if  I  were  lending  a  hand  to  measures  unfriendly  to  any  views  w  hich 
our  country  might  entertain  respecting  you.  But  I  have  not  done  it 
(written  to  you  on  the  subject),  because  I  have  before  assured  you  that 
a  sense  of  duty,  as  well  as  of  delicacy,  would  prevent  me  from  ever 
exjiressing  a  sentiment  ou  the  subject,  and  that  I  think  you  know  me 
well  enough  to  be  assured  I  shall  conscientiously  observe  the  line  of 
conduct  I  i)rofess.  1  shall  receive  you  ou  your  return  with  the  warm 
atlectiou  I  have  ever  entertained  for  you,  and  be  gratified  if  1  can  in 
any  way  avail  the  public  of  your  services."  In  a  private  letter  from 
]\Ir.  Jetierson  to  Mr.  Monroe,  April  11, 1808,  Mr.  Jefferson's  explanation  ' 
of  his  course  as  to  the  treaty,  and  as  to  his  relations  to  Mr.  Monroe, 
are  given  in  greater  detail. 

MSS.  Dept.  of  State. 

Among  the  Monroe  papers  in  the  Department  of  State  is  a  letter  from 
]\Ir.  Bowdoin,  of  February  27, 1807,  to  Mr.  ]\Ionroe,  expressing  a  general 
but  qualified  apj^roval  of  the  treaty  just  negotiated  by  Messrs.  Monroe 
and  IMiikney. 

The  subsequent  action  of  the  Ciovernmeut  of  the  United  States,  in 
respect  to  ^lessrs.  Erskine  and  Jackson,  is  noticed  su2)r(t,  ^  84,  107. 

A  ])ortion  of  the  correspondence  in  resi)ect  to  ]\Ir.  Erskine's  mission 
in  1809  to  the  United  States  is  found  in  3  Am.  St.  Pap.  (For.  Pel.),  :m)ff. 

As  to  Jackson's  mission,  sec  supra,  $§  84,  107. 

The  correspondence  between  Mr.  Foster,  the  British  minister  at 
Washington,  and  ]\Ir.  IMonroe,  Secretary  of  State,  beginning  with  Mr. 

lOG 


CHAP.  VI.]       GREAT    BRITAIN:    TREATY    OF    GHENT,    1814.         [§  150c. 

Foster's  letter  of  credeuce,  July  2,  1811,  aud  contiDuing  during  Mr. 
Foster's  mission,  are  in  3  Am.  St.  Pap.  (For.  Eel.),  435^. 

{(I)   TREATY   OF   GHENT   (1814). 

§  150c. 

In  a  letter  marked  ''  private,"  from  Mr.  Clay  to  Mr.  Monroe,  Secretary 
of  State,  dated  December  25,  1814,  are  the  following  passages  : 

"According  to  opinions  which  I  have  before  communicated  to  you, 
our  negotiation  has  terminated  in  a  treaty  of  peace,  which  was  signed 
yesterday.  The  terms  of  this  instrument  are  undoubtedly  not  such  as 
our  couutry  expected  at  the  commencement  of  the  war.  Judged  of, 
however,  by  the  actual  condition  of  things,  so  far  as  it  is  known  to  us, 
they  cannot  be  pronounced  very  unfavorable.  \Vc  lose  no  territory, 
I  think  no  honor.  If  we  lose  a  particular  liberty  in  fisheries,  on  the  oue 
hand  (which  maybe  doubted),  we  gain,  on  the  other,  the  exemption  of 
the  navigation  of  the  Mississippi  from  British  claims.  We  gain,  also, 
the  right  of  exemption  from  the  British  practice  of  treating  with  the 
Indians." 

An  exposition  by  Mr.  Gallatin  of  his  views  prior  to  assenting  to  the 
treaty  of  Ghent  will  be  found  in  a  letter  to  Mr.  Monroe,  dated  at  Ghent, 
October  26,  1814,  to  be  found  in  the  Monroe  papers,  with  pencil  notes 
by  Mr.  Monroe. 

^Ir.  J.  Q.  Adams's  diary  of  the  period  of  the  Ghent  negotiations  gives 
a  narrative  of  those  negotiations,  which,  though  of  deep  interest,  is  af- 
fected by  his  then  strong  antagonism  to  Mr.  Clay  and  to  Mr.  Kussell, 
two  of  his  colleagues. 

"You  ask  me  what  I  think  of  the  correspondence  of  our  ministers  at 
Ghent.  I  think  very  well  of  it.  The  language,  though  sometimes 
heavy,  on  tlie  whole  is  at  least  as  good  as  that  of  their  opponents. 
Their  arguments  are  better  than  their  language.  In  argument  their 
superiority  is  manifest.  *  *  *  The  British  commissioners  must  be 
very  dull  men.  Their  introduction  of  Pitt's  letter  to  Stanley,  and  their 
reliance  on  it,  constituted  a  terrible  faux  pas,  of  which  our  ministers 
have  properly  availed  themselves.  In  the  whole  correspondence  our 
ministers  seem  to  have  been  entirely  collected  and  on  their  guard,  and 
what  is  equally  satisfactory  and  important,  they  have  firmly  maintained 
the  honor  and  dignity  of  the  country." 

Mr.  G.  W.  Hay  to  Mr.  Monroe,  Jan.  G,  1815.     Monroe  MSS.,  Dept.  of  State, 

"I  have  no-doubt  that  the  British  commissioners  signed  the  treaty 
(if  it  be  signed)  under  an  expectation  that  Pakenham  was  in  posses- 
sion of  New  Orleans,  and  I  am  equally  conlident,  from  the  tenor  of  the 
(liplomatic  correspondence,  that  New  Orleans  never  would  have  been 
restored  under  the  treaty." 

Mr.  G.  W.  Hay  to  Mr.  Monroe,  Feb.  15,  1815.     Monroe  MSS.,  Dcpt.  of  State. 

Aa  to  the  nej^otiation  of  the  treaty  the  foHowing  authorities  may  bo  consulted  : 
A(lainn'H  Lift!  of  GaUatin,  51'.)^. ;  Menioirsof  Joliii  Quincy  Adams,  contain- 
ing Ilia  diary  during  tiie  negotiations  ;  10  Joliii  Adams's  Works,  1)7,  KMi,  129, 
131 ;  3  Am.  St.  Pap.  (For.  Rel.),  G'Jo  ff. ;  730  ff.  (4  ed.),  310  ;  Urit.  and  For. 
St.  Pap.  for  1821-''22,  vol.  9,  pp.  3(59,  530, 5(J5, 752, 823. 

For  correspondence  between  Mr.  Clay  aud  his  colleagues  in  respect  to  the  nego- 
tiations at  Ghent,  see  Colton's  Correspondence  of  Clay,  28  ff. 

107 


§  150^.]  TREATIES.  [CHAr.  VI. 

English  adverse  ciiticisius  on  the  treaty  of  Ghent  are  quoted  in  2 
IngersolTs  Hist,  of  Late  AVar  (1st  series),  312,  chaj).  xiii. 

A  review  by  ]\Ir.  J.  Q.  Adams  of  the  action  of  tlie  commissioners  at 
Ghent  is  given  in  a  report  to  President  INIonroe  of  ^lay  3,  1S22.  MSS. 
Ixeport  Book. 

The  convention  with  Great  lUitain,  under  tlie  mediation  of  Russia, 
exphmatory  of  the  lirst  article  of  the  treaty  of  Ghent,  concerning  indem- 
nity for  slaves  carried  from  the  United  States  by  the  British  forces  in 
1812,  as  submitted  to  the  Senate  on  Jan.  25, 1823,  is  in  Senate  Doc.  354, 
2d  sess.,  17th  Cong.;  5  Am.  St.  Tap.  (For.  Kel.),  214. 

The  nu^ssage  of  Tresident  J.  Q.  Adams,  ]\Iar.  8,  182(5,  reciting  the 
award  of  the  Emperor  of  Russia  on  the  questions  submitted  to  him,  is 
contained  in  House  Doc.  421,19th  Cong.,  1st  sess.;  5  Am.  St.  Pap.  (For. 
Re].),  800. 

The  report  of  the  House  Committee  on  the  Judiciary  on  claims  for 
indenjiiitication  under  the  first  article  of  the  treaty  of  Ghent,  is  given 
in  House  Doc.  478,  20th  Cong.,  1st  sess.;  6  Am.  St.'Pap.  (For.  Kel.),  8G0. 

Tbe  convention  under  mediation  of  Russia,  exi)lanatory  of  the  first 
article  of  the  treaty  of  Ghent,  communicated  by  President  Monroe  on 
January  25. 1823,  having  been  duly  ratified,  so  that  the  legislation  con- 
sequent on  it  could  take  place,  is  in  House  Doc.  354,  17th  Cong.,  2d 
sess. ;  5  Am.  St.  Pap.  (For.  Rel.),  214. 

In  the  London  Quarterly  Review,  vol.  3,  p.  28G,  as  noticed  in  a  letter  of 
Mr.  Gallatin  to  Mr.  E.  Everett,  of  August  G,  1828  (2  Gallatin's  Writings, 
400),  the  treaty  of  Ghent  is  spoken  of  as  "That  precious  treaty,  which 
gave  to  them  (the  CTnited  States)  all  that  they  asked,  and  much  more 
than  they  had  any  right  to  expect." 

The  arbitration  of  the  King  of  the  !N'etherlands,  under  the  fifth  ar- 
ticle of  the  treaty  of  Ghent,  is  discussed  infra,  §  316. 

Under  the  decision  of  the  commissioners,  under  the  fourth  article  of 
the  treaty  of  Ghent,  the  small  island  called  Pope's  Folly,  in  the  bay  of 
Passamaquoddy,  is  within  the  jurisdiction  of  the  United  States. 
An  open  boat  and  cargo,  Ware,  26. 

"  On  the  1st  of  June,  1812,  President  Madison  transmitted  a  confiden- 
tial message  to  Congress  respecting  the  relations  with  Great  Britain. 
It  ended  without  recommending  any  ])articular  action.  It  was  received 
in  each  body  with  closed  doors.  In  the  House  it  was  considered  on  the 
2d  and  3d  of  June  with  closed  doors.  On  the  3d,  Calhoun,  from  the  Com- 
mittee on  Foreign  Relations,  to  whom  it  had  been  referred,  reported  (the 
House  being  in  secret  session)  'that  after  the  experience  which  the 
United  States  have  had  of  the  great  injustice  of  the  British  Govern- 
ment towards  them,  exemplified  by  so  many  acts  of  violence  and  oppres- 
sion, it  will  be  more  difficult  to  justify  to  the  impartial  world  their  pa- 
tient forbearance,  than  the  measures  to  which  it  has  become  necessary 
to  resort  to  avenge  the  wrongs  and  vindicate  the  rights  and  honor  of  the 
nation.  *  *  *  The  period  has  now  arrived  when  the  United  States 
must  support  their  character  and  station  among  the  nations  of  the  earth. 
*  *  *  More  than  seven  years  have  elapsed  since  the  commencement 
of  this  system  of  hostile  aggressions  by  the  British  Government  on  the 
rights  and  interests  of  the  United  States.  *  *  *  As  early  as  1804 
the  minister  of  the  United  States  at  London  was  instructed  to  invite 
the  British  Government  to  enter  into  a  negotiation  on  all  the  points  on 
which  a  collision  might  arise  between  the  two  countries  in  the  course 

1C8 


CHAP.  VI.]       GREAT    BRITAIN:    TREATY    OF    GHENT,    1814.         [§  150c. 

of  the  war,  and  to  propose  to  it  an  arraiigeuieut  of  their  chums  ou  fair 
and  reasonable  conditions.  The  invitation  was  accepted.  *  *  *  It 
was  at  this  time,  and  under  these  circumstances,  that  an  attack  was 
made,  by  surprise,  upon  an  important  branch  of  the  American  commerce. 

*  *  *  The  commerce  on  which  this  attacli  was  so  unexpectedly  made 
was  that  between  the  United  States  and  the  colonies  of  France,  Spain, 
and  other  enemies  of  Great  Britain.  *  *  *  In  May,  180G,  the  whole 
coast  of  the  continent,  from  the  Elbe  to  Brest,  inclusive,  was  declared 
to  be  in  a  state  of  blockade.  By  this  act  the  well  established  princi- 
ples of  the  law  of  nations — principles  which  have  served  for  ages  as 
guides,  and  fixed  the  boundary  between  the  rights  of  belligerents  and 
neutrals — were  violated.  *  *  *  The  next  act  of  the  British  Govern- 
ment which  claims  our  attention  is  the  order  of  council  of  January  7, 
1807,  by  which  neutral  powers  are  prohibited  from  trading  from  one 
port  to  another  of  France  or  her  allies,  or  any  other  country  with  which 
Great  Britain  might  not  freely  trade.  *  *  *  We  proceed  to  bring 
into  view  the  British  order  in  council  of  November  11,  1807.  *  *  * 
By  this  order  all  France  and  her  allies,  and  every  other  country  at  war 
with  Great  Britain,  or  with  which  she  was  not  at  war,  from  which  the 
British  flag  was  excluded,  and  all  the  colonies  of  her  enemies,  were  sub- 
jected to  the  same  restrictions  as  if  they  were  actually  blockaded  in  the 
most  strict  and  rigorous  manner;  and  all  trade  in  articles,  the  produce 
and  manufacture  of  the  said  countries  and  colonies,  and  the  vessels  en- 
gaged in  it,  were  subject  to  capture  and  condemnation  as  lawful  r>rize. 

*  *  *  The  attempt  to  dismember  our  Union,  and  overthrow  our  ex- 
cellent Constitution,  by  a  secret  mission,  the  object  of  which  was  to 
foment  discontent  and  excite  insurrection  against  the  constituted  au- 
thorities and  laws  of  the  nation,  as  latel}"  disclosed  by  the  agent  em- 
ployed in  it,  affords  full  proof  that  there  is  no  bound  to  the  hostility  of 
the  British  Government  against  the  United  States.  *  *  *  The  dates 
of  British  and  French  aggressions  are  well  known  to  the  world.  Their 
origin  and  progress  have  been  marked  by  too  wide  and  destructive  a 
waste  of  the  property  of  our  fellow-citizens  to  have  been  forgotten.  The 
decree  of  Berlin  of  oSl^ovember  21, 1806,  was  the  first  aggression  of  France 
in  the  present  war.  Eighteen  months  had  then  elapsed  after  the  attack 
made  by  Great  Britain  on  our  neutral  trade  with  the  colonies  of  France 
and  her  allies,  and  six  months  from  the  date  of  the  proclamation  of  May, 
1806.  *  *  *  From  this  review  of  the  multiplied  wrongs  of  the  Brit- 
ish Government,  since  the  commencement  of  the  present  war,  it  must 
be  evident  to  the  impartial  Y7orld  that  the  contest  which  is  now  forced 
on  the  United  States  is  radically  a  contest  for  their  sovereignty  and  in- 
dependence. *  *  *  Your  committee  recommend  an  immediate  ap- 
peal to  arms.' 

"The  nouse  passed  a  bill  entitled  'An  act  declaring  war  between 
Great  Britain  and  her  dependencies,  and  the  United  States  and  their 
Territories,'  and  on  the  5th  of  June  transmitted  it  to  the  Senate  with  a 
request  that  it  might  be  considered  confidentially.  The  Senate  amended 
it  and  passed  it  as  amended  on  the  17th  of  June.  On  the  18th  of  June 
the  House  informed  the  Senate  that  the  amendments  were  concurred 
in,  and  on  the  same  day  the  bill  was  signed  by  tl)e  President  and  be- 
came a  law. 

"By  the  11th  of  July  the  American  comnjissioners  liad  notilied  the 
Secretary  of  State  that  they  were  at  Ghent.  The  first  conference  was 
held  on  the  8th  of  August.  The  course  which  the  negotiations  tooic  may 
be  found  detailed  in   J-'oreign   delations,  folio,  vol.  3,  pages  095-748, 

1 00 


§  1506\]         ^  TREATIES.  |  CHAP.  VI. 

;ui(l  vol.  4,  pages  808-811.  The  Uiitisli  eoininissioiieis  brought  forward 
(1)  lni])ros.snient;  (2)  Pacilication  of  the  liidhins  and  assignment  of  a 
territory  to  them  to  be  taken  from  the  Territories  of  the  United  States, 
with  detined  boniKhnies;  (3)  Kevision  of  the  boun(hiry-Hne between  the 
United  States  and  (Ireat  Britain,  inebiding  the  control  of  the  lakes  by 
Great  llritain;  The  lisheries,  which  the  Americans  were  not  to  be  ])er- 
mitted  to  enjoy  without  an  eiiuivalent.  The  American  commissioners 
brought  forward — (5)  Delinition  of  a  blockade;  (0)  Claims  for  inden)nity 
for  capture  and  seizure;  (7)  Other  points,  the  right  to  present  which 
were  reserved. 

"On  the  4th  of  October,  the  Secretary  of  State  sent  his  last  instruc- 
tions to  the  comnussioners :  'You  are  authorized,  should  you  lind  it 
imi)racticable  to  make  an  arrangement  more  comformable  to  the  instruc- 
tit)ns  originally  given,  to  agree  to  the  status  quo  ante  helium  as  the  basis 
of  negotiation.  The  great  and  unforeseen  change  of  circumstances  ])ar- 
ticularly  the  prospect  of  a  more  durable  state  of  peace  between  Great 
Britain  and  the  continental  powers  of  Eurojie,  and  of  security  to  our 
maritime  rights,  justify  this  change  of  our  ultimatum.  Our  right  to  the 
lisheries  to  the  lull  extent  of  our  territory,  as  delined  by  the  treaty'  of 
1783  with  Great  Britain,  and  those  of  subsequent  date  with  other  powers, 
and  to  trade  with  all  other  independent  nations,  are,  of  course,  not  to  be 
relinquished;  nor  is  anything  to  be  done  which  would  give  a  sanction 
to  the  ]}ritish  claim  of  impressment  on  board  our  vessels,  or  to  that  of 
blockading  without  the  actual  application  of  an  adequate  force.  With 
these  explanations  jou  are  at  liberty  to  make  such  a  treaty  as  your  own 
judgments  shall  api)rove,  under  existing  circumstances,  subject  only  to 
the  usual  requisite  of  ratification  here.  It  is  important  to  the  United 
States  to  make  peace,  but  it  is  more  important  to  them  to  preserve  their 
rights  as  an  independent  nation,  which  will  in  no  event  be  surrendered.' 

"Under  these  instructions  the  treaty  was  concluded  on  the  24th  day 
of  December,  1814. 

"John  Quincy  Adams  was  appointed  minister  at  London  on  the2Sth 
of  February,  1815.  Clay  and  Gallatin  also  went  there,  and  negotiations 
were  o])ened  for  a  commercial  convention.  The  official  conferences  be- 
gan on  the  18tli  of  May,  1815.  Napoleon  having  meanwhile  returned 
from  Elba,  the  American  commissioners  endeavored  to  take  advantage 
of  the  situation  to  secure  stipulations  respecting  impressment  and  a 
definition  of  blockades.  The  discussions  were  prolonged  until  after  the 
battle  of  Waterloo.  No  such  provisions  were  obtained.  *  *  *  Dis- 
criminating duties  collected  on  British  vessels,  after  it  went  into  opera- 
tion, and  in  violation  of  its  provisions,  were  refunded  under  an  act  of 
Congress. 

"Among  the  subjects  discussed  by  the  commissioners  at  Ghent  was  the 
naval  force  to  be  maintained  on  the  lakes.  No  determination  was  come 
to,  but  soon  after  the  peace  a  correspondence  began  which  ended  by  an 
agreement  respecting  it  made  in  Washington,  which  was  submitted  to 
the  Senate  fur  approval,  and,  when  approved,  was  proclaimed  by  the 
President. 

"Some  steps  were  taken  in  the  treaty  of  Ghent  toward  adjusting  the 
<lisi)uted  boundary  between  the  United  States  and  the  British  posses- 
sions. 

"The  fourth  article  provided  for  a  commission  to  determine  the  sov- 
ereignty over  the  islands  in  and  near  Passamaquoddy  Bay.  The  ex- 
ecution of  this  provision  and  the  correspondence  relating  to  it  will  be 
found  in  volume  4,  Foreign  Kelations,  folio,  pages  171-173. 

170 


CHAP.  VI.]      GREAT  BRITAIN:    CONVENTIONS  OF  1815,  1818.       [§  150^ 

"The  tiftU  article  provided  for  a  commission  to  deteiiiiiue  and  to  mark 
the  boundary  from  the  source  of  the  Saint  Croix  to  the  river  Saint  Law- 
rence [called  the  Iroquois  or  Cataraquy]  on  the  45th  parallel.  This 
was  the  disputed  line  which  Mr.  King's  treaty  aimed  to  settle  in  1803. 
The  treaty  of  1783  required  it  to  be  run  on  the  highlands  which  divide  the 
rivers  that  empty  themselves  into  the  river  Saint  Lawrence  from  those 
which  fair  into  the  Atlantic  Ocean.  Great  Britain  contended  that  it 
should  be  run  upon  the  highlands  to  the  south  of  the  Saint  John's;  but 
that  line  of  highlands  turned  no  water  into  the  Saint  Lawrence.  The 
United  States  contended  that  it  should  be  run  on  the  highlands  to  the 
north  of  that  river — that  being  the  only  watershed  that  turned  its 
northern  waters  into  the  Saint  Lawrence,  and  its  southern  waters  into 
the  x\tlautic.  although  through  the  Bay  of  Fundy.  The  commission  un- 
der the  treaty  of  Ghent  disagreed  in  opinion  and  made  separate  reports 
to  their  Governments.  The  subject,  which  afterwards  became  known, 
diplomatically,  as  the  northeastern  boundary  question,  was,  in  1827, 
referred  to  the  decision  of  the  King  of  the  Netherlands;  but  his  award 
was  satisfactory  to  neither  party,  and  was  rejected  by  both.  Nego- 
tiations were  from  time  to  time  resumed,  but  they  proved  fruitless 
until  the  treaty  of  1842,  when  by  mutual  consent  the  present  line  was 
established.  For  a  complete  review  of  the  negotiations,  see  Mr.  Web- 
ster's speech  in  the  Senate,  April  0  and  7,  184G,  and  the  messages  and 
correspondence  there  referred  to. 

"The  sixth  and  seventh  articles  of  the  treaty  of  Ghent  provided  for 
a  commission  to  determine  and  mark  the  boundary  from  the  45th  parallel 
on  the  Saint  Lawrence  to  the  north  westernmost  point  of  the  Lake  of  the 
Woods.  This  commission  was  duly  appointed,  and  in  1822  reported  its 
work  respecting  so  much  of  the  boundary  as  was  referred  to  in  the  6th 
article,  viz,  from  the  45th  parallel  on  the  Saint  Lawrence  to  the  water 
communication  between  Lake  Iluron  and  Lake  Superior.  The  line  in- 
dicated by  the  seventh  article  was  affected  by  the  provisions  of  the 
second  article  of  the  convention  of  1818.  This  was  also  marked  ;  but 
the  line  as  marked  was  changed  in  part  by  the  iDrovisions  of  the  second 
article  of  the  treaty  of  1842." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

(e)  COXVENTIOXS  ov  1815,  1818. 

§  150d.. 

The  commercial  convention  signed  on  July  3, 1815,  with  "  the  declara- 
tion with  which  it  is  the  intention  of  the  British  Government  to  accom- 
l)any  the  exchange  of  the  ratilScations,"  is  given,  as  submitted  by  Pres- 
ident Madison  to  the  Senate  on  December  G,  1815,  in  4  Am.  St.  Pap.  (For. 
Kel.),  7.  Tliis  is  accomi)anied  by  notes  from  the  American  negotiators 
to  the  Secretary  of  State,  dated  London,  May  18,  July  3,  1815,  giving 
the  details  of  the  negotiation. 

I*resident  J.  Q.  Adams's  message  of  December  12,  1827,  transmitting 
conventions  with  Great  Britain  for  continuing  in  lorce  the  commercial 
convention  of  July  3,  1815,  the  third  article  cf  the  convention  of  Oc- 
tober 20,  1818,  and  for  the  reference  to  a  friendly  sovereign  of  the  i)oiuts 
of  ditference  as  to  the  northeastern  boundary  of  the  United  States,  ia 
in  Senate;  Ex.  Doc.  458,  20tli  Cong.,  1st  sess.;"o  Am.  St.  Pap.  (Foi-.  Kei.), 
G30. 

As  In  iimaiiiiif;  of  "  jiiHt  iiidcmiiily  "  in  llic  fitli  arlich^  of  tlif  coiivciit  ion  of  1818, 
wo  opinion  of  Mr.  "Wirt,  132G,  (;ifc<l,  in/in,  ^  251. 

171 


^  150d]  TREATIES.  [CIIAP.  Vl. 

The  first  article  of  the  treaty  of  1815,  piovidiiig  for  iiuitiial  freedom 
and  liberty  of  commerce,  cannot  be  construed  to  imply  an  obligation  to 
protect  the  rights  of  foreign  owners  of  slaves  brought  to  our  shores  as 
seamen. 

2  Op.,  47."i,  Tauey,  1831. 

As  to  fisberies,  sec  infra,  ^  '301  ff. 

''The  rights  of  the  United  States  in  the  British  fisheries  were  not 
referred  to  in  the  treaty  of  Ghent,  and  a  controversy  si)eedily  arose  on 
the  British  claim  to  exclude  American  fishernnin  from  the  inshore 
fisheries.  The  diplomatic  circumstances  which  led  to  the  conclusion 
of  that  i)art  of  the  convention  of  1818  which  relates  to  the  fisheries 
have  been  referred  to  in  the  introductory  note.  The  correspondence  re- 
lating to  it  -will  be  found  in  the  4tb  volume  of  the  Folio  Toieign  Ke- 
lations,  pages  348-407.  See  also  the  papers  submitted  to  the  Senate 
with  the  treaty  of  1871,  pages  35-50.  The  subject  has  been  often  dis- 
cussed in  Congress.  The  debate  in  the  Senate  in  the  year  1852  pre- 
sents a  thorough  discussion  of  the  merits." 

Mr.  J.  C.  13.  Davis,  Notes,  &;c.     See  ivfra,  $§  301.//'. 

The  effect  of  the  treaty  of  1818  is  to  reaffirm  the  right  of  the  United 
States  to  the  enjoyment  of  the  North  Eastern  fisheries,  subject  to  cer- 
tain renunciations.     {Infra,  §§301,^'.) 

"  It  was  contended  by  the  United  States,  and  denied  by  Great  Brit- 
ain, that  the  provision  of  the  first  article  of  the  treaty  of  Ghent  re- 
quired the  latter  to  make  restitution  or  compensation  for  slaves,  who, 
at  the  date  of  the  ratification,  were  in  any  place  that  was  to  be  re- 
stored to  the  United  States,  and  who  were  not  delivered  up  with  the 
territory.  The  parties  being  unable  to  agree,  it  was  provided  in  the 
convention  of  1818  that  this  question  should  be  referred  to  some  friend- 
ly sovereign  or  state ;  and  in  1822  it  was  referred  to  the  decision  of 
the  Emperor  of  Eussia,  who  rendered  an  award  in  favor  of  the  United 
States.  A  joint  commission  was  then  appointed  to  ascertain  the  claim- 
ants and  the  amount  of  their  claims  under  this  award.  Langdon  Oheves 
was  the  American  commissioner,  George  Jackson,  the  British.  Their 
l)roceedings,  which  commenced  August  25,  1823,  were  terminated  in 
December,  1825,  by  '  a  most  extraordinary  refusal  of  Mr.  Jackson  to 
execute  the  5th  article  of  the  convention.  *  *  *  This  malforma- 
tion of  the  tribunal  could  onl^'  have  been  remedied  by  a  spirit  of  mu- 
tual concession  and  accommodation  between  its  comi)onent  members. 
Such  a  spirit  has,  unfortunately,  not  been  evinced  in  the  course  of  its 
proceedings  by  Mr.  Jackson.'  The  whole  question  was  settled  by  the 
two  Governments  by  a  convention  on  the  13th  November,  1820,  pro- 
viding for  the  payment  of  an  agreed  sum.     (See  infra  §  221.) 

"  The  undetermined  boundary-line  between  the  old  i)rovince  of  Lou- 
isiana and  the  British  American  possessions,  the  provisions  concerning 
which  defeated  Rufus  King's  treaty  of  1803,  presented  itself  again 
after  the  peace  of  1814.  It  was  settled,  temporarily,  in  the  treaty  of 
1818,  by  agreeing  that  the  49th  parallel  should  be  the  boundary  from 
the  Lake  of  the  Woods  to  the  Kocky  Mountains,  and  that  the  territory 
west  of  the  Rocky  Mountains  should  be  occupied  jointly  for  the  term 
of  ten  years.  Fort  George,  on  the  Columbia  liiver,  Avhich  had  been 
withheld  from  the  United  States,  in  admitted  violation  of  the  i)rovis- 
ions  of  the  treaty  of  Ghent,  was  only  then  formally  restored  to  them. 

172 


CHAP.  VI.]      GRP]AT  BRITAIN:    CONVENTIONS  OF  1815,  1818.       [§  150d 

"  Xegotiations  were  opened  at  Loudou  in  1823,  ou  tbe  motion  of  the 
United  States,  for  settling  this  boundary,  but  they  came  '  to  a  close 
*  *  *  without  any  treaty  or  other  engagement  having  been  con- 
cluded.' The  British  plenipotentiaries  proposed  '  the  49th  parallel  to 
the  point  where  it  strikes  the  northernmost  branch  of  the  Columbia 
and  thence  down  along  the  middle  of  the  Columbia  to  the  Pacific 
Ocean.'  Eush,  on  his  own  motion,  refused  this,  and  proposed  the 
49th  parallel  to  the  Pacific.  The  British  plenipotentiaries  rejected  this 
and  made  no  new  proposal  in  return." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"  In  182G  negotiations  were  resumed  on  the  suggestions  of  the  British 
Government.  Canning  inquired  of  Eufus  King,  then  minister  at  London, 
whether  he  was  provided  with  instructions  for  their  resumption.  King, 
who  was  about  leaving  London,  answered  that  he  had  been  awaiting 
special  instructions,  and  transmitted  the  correspondenceto  Washington. 
Clay,  then  Secretary  of  State,  instructed  Gallatin,  King's  successor,  that 
the  President  could  not  consent  that  the  boundary  should  be  south  of 
49"^.  Gallatiu  attempted  to  conclude  a  convention  on  that  basis,  but 
the  attempt  proved  fruitless,  and  the  negotiations  terminated  August 
6,  1827,  by  an  indefinite  extension  of  the  joint  occupation,  subject  to  its 
termination  on  twelve  months'  notice  by  either  i^arty. 

"  This  state  of  things  was  ended  by  the  passage  of  a  resolution  in 
Congress,  April  27,  1846,  authorizing  the  President,  '  at  his  discretion, 
to  give  to  the  Government  of  Great  Britain  the  notice  required  *  *  * 
for  the  abrogation  of  the  convention.' 

"  On  the  15th  of  the  following  June  a  treaty  was  concluded  at  Wash- 
ington, in  which  it  was  provided  that  the  4'9th  parallel  should  be  the 
boundary,  '  to  the  middle  of  the  channel  which  separates  the  continent 
from  Vancouver's  Island,  and  thence  southerly,  through  the  middle  of 
said  channel  and  of  Fuca  Straits,  to  the  Pacific  Ocean.'  The  debates 
in  Congress  on  these  subjects  will  be  found  in  the  Globe  and  appendix 
for  the  1st  sess.  29th  Cong.  The  motives  and  purposes  of  the  United 
States  in  making  this  settlement  are  set  forth  in  the  confidential  docu- 
ment already  referred  to,  submitted  to  the  Senate  with  the  treaty  of 
1871.  They  were  '  so  far  to  depart  from  the  49th  parallel  as  to  leave 
the  whole  of  Quadra  and  Vancouver's  Island  to  England.'  What  the 
British  ministry  intended  was  stated  by  SirKobert  Peel  in  the  House 
of  Commons  on  the  2Gth  of  June,  184G.  '  That  which  we  proposed  is  the 
continuation  of  the  49th  parallel  of  latitude  till  it  strikes  the  Straits  of 
Fuca ;  that  that  parallel  should  not  be  continued  as  a  boundary  across 
Vancouver's  Island,  thus  depriving  us  of  a  part  of  Vancouver's  Island, 
but  that  the  middle  of  the  channel  shall  be  the  future  boundary,  thus 
leaving  us  in  ])ossession  of  the  whole  of  Vancouver's  Island.'  It  is  diffi- 
cult to  see  the  dift'erence  between  these  two  propositions.  Lord  Palmer- 
ston,  however,  laid  claim  to  run  the  boundary  through  the  Eosario 
Straits,  and  to  embrace  within  British  sovereignty  an  archipelago  of 
islands,  instead  of  Vancouver's  Island  only.  The  question  remained 
open  until  it  was  settled  by  a  provision  in  tlie  treaty  of  1871,  referring 
it  to  the  lOmperor  of  Germany  to  decide  whether  the  Eosario  Straits  or 
the  Canal  d<;  Ilaro  was  the  channel  through  the  middle  of  which  the 
line,  should  be  run  according  to  the  true  interpretation  of  the  treaty  of 
1840.  The  decision  was  in  favor  of  the  Haro  Channel  and  of  1  ho  claims 
of  the  United   Sl;ites. 

173 


^N  15 Of?.]  TKEATIEy.  [chap.  Y1. 

"  111  tlie  year  1827  the  commercial  couveutiou  of  1815,  wliicb  bad  been 
renewed  and  extemU'd  in  1S18,  was  aijaiii  renewed.  Tbe  United  States 
6tiu^<,d('d  lor  more  liberal  ajrreements  and  lor  a  more  liberal  interpreta- 
tion of  the  existing'  agreement,  but  could  secure  neither. 

'' Inell'ectual  ellbrts  were  also  made  on  both  sides  for  the  conclusion 
of  a  treaty  for  the  sui)i)ression  of  the  African  slave  trade.  The  consti- 
tutional assent  ot  tbe  iSenate  could  not  be  obtained  to  a  ])rovision  au- 
thorizing a  search  of  American  vessels  otf  the  coasts  of  the  United 
States.  No  treaty  arrangement  was  come  to  on  this  subject  until  the 
treaty  of  1842,  negotiated  by  Mr.  "Webster  and  Lord  Ashburton,  which 
has  already  been  referred  to  in  connection  with  the  northeastern  and 
northern  boundaries,  and  in  the  introductory  note  in  connection  with 
extradition.  The  United  States  has  also  made  like  ineffectual  ellbrts 
to  secure  a  treaty  for  the  mutual  surrender  of  fugitive  slaves.  The  de- 
bates in  Congress  on  the  treaty  of  1812  have  already  been  referred  to; 
the  correspondence  connected  with  it  will  be  found  in  House  Ex.  Doc. 
2,  27th  Cong.,  od  sess. 

"In  that  treaty  with  Great  Britain  (of  1815)  it  was  for  the  first  time 
agreed  that  no  higher  or  other  duties  or  charges  should  be  im])osed  in 
any  of  the  ports  of  the  United  States  on  vessels  of  another  ])ower  than 
those  payable  in  the  same  ports  by  vessels  of  the  United  States;  that 
the  same  duties  sbould  be  paid  on  the  importation  into  the  United  States 
of  any  articles  the  growth,  produce,  or  manufacture  of  a  foreign  power, 
whether  such  iiui)ortation  should  be  made  in  ves.sels  of  the  United  States 
or  iu  vessels  of  that  power,  and  that  in  all  cases  where  drawbacks  were 
or  might  be  allowed  upon  the  re-exportation  of  any  goods  the  growth, 
l)rodu{;e,  or  manufacture  of  either  country  respectively,  the  amount  of 
the  drawback  should  be  the  same,  whether  the  goods  should  have  been 
imported  in  American  vessels  or  iu  vessels  of  the  foreign  power.  How 
frequently  these  principles  have  since  been  recognized  in  treaties  of 
the  United  States,  an  examination  of  the  index  following  these  notes 
will  show." 

Ibid. 

Several  reports  of  Secretaries  as  to  present  British  armaments  on  the 
lakes,  in  connection  with  the  treaty  of  1817  as  to  such  force,  are  in  House 
Ex.  Doc.  103,  26tb  Cong.,  1st  sess. 

The  negotiations  prior  to  the  convention  signed  at  London  October 
20,  1818,  as  submitted  to  the  Senate  December  29,  1818,  are  in  Senate 
Doc.  306,  2d  Cong.,  2d  sess,  ;  4  Am.  St.  Pap.  (For.  Eel.),  348. 

In  the  Brit,  and  For.  St.  Pap. for  1818-'19  (vol.  0,  GO.//'.)  will  be  found 
tbe  proceedings  of  the  commissioners  by  whom  the  treaty  of  1818  was 
negotiated. 

The  correspondence  in  1822-'23  between  the  United  States  and  Great 
Britain  as  to  the  territory  west  of  the  Eocky  Mountains  will  be  found 
in  House  Doc.  199,  20th  Cong.,  1st  sess. 

President  J.  Q.  Adams's  message  of  May  19, 1828,  containing  the  con- 
vention with  Great  Britain  of  August  C  and  September  29, 1827,  ratified 
April  2,  1828,  is  in  House  Doc.  492,  20th  Cong.,  1st  sess. ;  G  Am.  St. 
Pap.  (For.  Rel.),  999. 

By  article  3  of  the  convention   with  Great  Britain  of  1818  it  was 
agreed  that  the  Oregon  Territory  should  "  be  free  and  open  to  the  ves- 
sels, citizens,  and  subjects  of  the  two  powers,  which  convention  was 
continued  in  force  until  the  convention  of  184G.     It  has  been  held  that 
174 


CHAP.  VI.]        GREAT  BEITAIN  :  ASHBUETON  TREATY,  1842.         [§  150e. 

duriug  the  period  of  such  joint  occupatiou,  the  country,  as  to  British 
subjects  therein,  was  British  soil,  and  subject  to  the  jurisdiction  of  the 
King  of  Great  Britain  :  but,  as  to  the  citizens  of  the  United  States,  it 
was  American  soil,  and  subject  to  the  jurisdiction  of  the  United  States  ; 
and  that  a  child  boru  in  such  Territory  in  1823  of  British  subjects,  was 
born  in  the  allegiance  of  the  King  of  Great  Britain,  and  not  in  that 
of  the  United  States. 

McKay  i-.  Campbell,  2  Sawyer,  118.     See  as  to  tliis  case  infra,  §^  1815,  191. 

(/)   ASHBURTON   TREATY  (1842). 

§  150c. 

A  review  and  analysis  of  the  correspondence  between  Mr.  Webster 
and  General  Cass  in  reference  to  the  Ashburton  treaty,  is  given  in  2 
Curtis's  Life  of  Webster,  181,^.  The  portions  of  Mr.  Webster's  letters 
in  this  discussion  which  relate  to  the  right  of  search  and  impressment 
are  given  infra,  §§  327,  331,^'.;  those  relating  to  the  Caroline  and  Mc- 
Leod  cases,  S2q)ra,  §§  21,  oOa  ff.  The  correspondence  relative  to  the 
northeastern  boundary  is' here  omitted,  as  it  in  the  main  involves  con- 
crete rulings  which  are  not  likely  to  be  taken  as  precedents.  The  ex- 
tradition features  of  the  treaty  are  discussed  infra,  §§  1G9  Jf.  The  de- 
tailed action  of  the  Senate  in  respect  to  the  treaty  does  not  fall  within 
the  range  of  this  work,  as  it  is  part  of  the  history  of  tbe  times  and  gener- 
ally accessible  as  such  to  students  in  this  country. 

Mr.  Webster's  correspondence  on  the  subject  is  in  2  Webster's  Works, 
510,  586 ;  5  ibid,  98 ;  0  ibid,  271,  273,  295,  326,  328.  His  speech  in 
defense  of  the  treaty  is  given  in  full,  in  5  Webster's  Works,  78^^". 

The  correspondence  with  Great  Britain  in  1836,  relative  to  the  north- 
eastern boundarv  of  the  United  States,  is  in  the  Brit,  and  For.  St.  Pap. 
forl833-'31,vol.^22,  770;  1835-'36,  vol.  21,  1106;  836-'37,  vol.  25,901. 

"There  is  a  very  general  feeling  of  satisfaction  at  the  termination  of 
the  boundary  dispute  with  the  Americans,  and  it  will  be  impossible  for 
Palmerston,  who  is  ready  to  find  fault  with  everything  the  foreign  office 
does,  to  carry  jmblic  opinion  with  him  in  attacking  this  settlement. 
He  showed  his  disposition  in  a  conversation  he  had  lately  with  M.  do 
Bacourt  (just  come  over  from  America),  to  whom  he  said  that  we  had 
made  very  important  concessions.  But  Charles  Buller,  who  was  with 
me  when  31.  de  Bacourt  told  me  this,  said  he  for  one  would  defend  Lord 
Ashburton's  treaty,  let  Palmerston  say  what  he  would.  He  never  would 
quarrel  with  any  tolerable  arrangement  of  such  a  question  as  that.  I 
heard  yesterday  a  curious  thing  relating  to  this  matter.  Lemon,  of  the 
state  paper  office,  called  on  me,  and  told  me  that  about  three  months 
ago  they  were  employed  by  the  foreign  office  in  searching  for  documents 
relating  to  the  original  discussions  on  the  boundary  question.  There 
was  a  great  deal  of  correspondence,  much  of  which  was  copied  for  tuo 
use  of  Government.  While  thus  occu])ied,  he  recollected  ^hat  there  was 
an  old  map  of  North  America,  whicli  had  been  lying  neglec*^ed  and 
tossed  about  the  oflice  for  the  last  twenty-live  years,  and  he  determined 
to  examine  this  maj).  He  did  so,  and  discovered  a  iaint  red  line  drawn 
all  across  certain  jiarts  of  it,  together  with  several  i)encil  lines  diawn 
in  parallels  to  the  red  line  above  and  below  it.  It  immediately  occurred 
to  him  that  this  was  the  original  map  supposed  to  be  lost  (for  it  never 

175 


§  150c.]  TREATIES.  [CHAr.  VI. 

could  be  fouml),  which  was  used  for  marking  and  settling  the  boundary 
(luestion,  and  he  gave  notice  to  the  foreign  oflice  of  what  ho  had  dis 
covered.  The  niai)  was  immediately  sent  for  and  examined  by  the 
Cabinet,  who  deemed  it  of  such  importance  that  they  ordered  it  to  be 
instantly  locked  up,  and  that  nobody  shonUl  have  access  to  it.  First, 
however,  they  sent  for  the  most  eminent  and  ex])erienced  men  in  this 
line  of  business,  Arrowsmith  and  two  others,  and  desired  them  to  ex- 
amine closely  this  map  and  report  their  o])inions,  sei)arately  and  with- 
out concert,  upon  certain  questions  which  were  submitted  to  them. 
These  related  principally  to  the  anti(]uity  of  the  red  ami  pencil  lines, 
and  whether  the  latter  had  been  made  before  or  after  the  former.  They 
all  agreed  as  to  the  age  of  the  lines,  and  they  proved  that  the  pencil 
marks  had  been  made  subsequently  to  the  red  line.  1  forget  the  other 
])articulars,  but  so  much  importance  was  attached  to  the  discovery  of 
this  nnip,  which  was  without  doubt  the  original,  that  an  exact  account 
of  its  lines  and  marks  was  made  out  for  Lord  Ashburton,  and  a  mes- 
senger disi)atched  to  rortsmouth  with  orders  to  lay  his  hands  on  the 
first  Government  steamer  he  could  lind,  no  matter  what  her  destination 
or  puri)Ose,  and  to  go  off  to  America  forthwith.  As  soon  afterward  as 
possible  the  boundary  question  was  settled,  and  it  is  certainly  reasona- 
ble to  suppose  that  this  discoverj'  had  an  important  effect  upon  the 
decision." 

Greville's  Memoirs,  Sept.  11,  1842,  vol.  1,  2A  scr. 

To  this  passage  is  appended  the  following  note : 

"  The  treaty  signed  at  Washington  on  August  9, 1842,  by  Lord  Ash- 
burton and  Mr.  Webster,  settled  the  disputed  question  of  the  northeast 
boundary  between  Canada  and  the  State  of  Maine,  and  terminate*! 
some  other  differences  between  Great  Britain  and  the  United  States. 
It  was  denounced  by  Lord  Palmerston  as  '  a  capitulation,'  but  generally 
accepted  and  applauded  by  both  nations." 

"Palmerston  complains  that  our  foreign  affairs  are  all  mismanaged 
from  first  to  last,  and  that  ice  give  tip  everything ;  universal  concession 
the  rule  of  action,  and  that  there  can  be  no  difficulty  in  cettling  ques- 
tions if  we  yield  all  that  is  in  dispute.  He  is  particularly  dissatisfied 
with  the  boundary  treaty,  in  which  he  says  we  have  been  overreached 
by  the  Americans ;  that  Lord  Ashburton  was  a  very  unfit  man  to  send 
there,  having  an  American  bias,  besides  a  want  of  firmness  in  his  char- 
acter, lie  thinks  the  territorial  concessions  we  have  made  very  objec- 
tionable and  quite  unnecessary,  and  that  we  had  already  proved  our 
right  to  the  disputed  land  ;  that  since  the  King  of  Holland's  award 
evidence  (which  was  then  wanting)  has  been  adduced  which  clearly 
establishes  our  rights.  It  is  evident  that  he  means  to  fall  foul  of  this 
arrangement  upon  the  first  suitable  occasion." 

Greville's  Memoirs,  Sept.  17,  1842,  vol.  1,  2d  ser. 

"  On  Sunday  morning  I  called  on  Lord  John  Eussell,  and  Ave  had  an 
argument  about  Lord  Ashburton  and  his  treaty,  which  he  abused 
very  roundly,  saying  all  that  I  had  before  heard  of  his  writing  to  his 
brother  against  it,  but  still  owning  that  it  was  not  very  injurious.  1 
have  a  great  respect  for  Lord  John,  who  is  very  honest  and  clever,  but 
in  this  matter  he  talks  great  nonsense,  Palmerston  is  much  more  con- 
sistent, and  takes  a  clear  and  broad  view  of  it.  He  says,  'We  are  all 
in  the  right,  and  the  Americans  all  in  the  wrong.    Never  give  up  any- 

170 


CHAP.  VI.]      GEEAT    BRITAIN  :    ASHBURTON    TREATY,  1842.       [§  150^. 

thing,  insist  on  having  the  thing  settled  in  your  own  way,  and  if  they 
won't  consent,  let  it  remain  unsettled.'  But  Lord  John  merely  says 
you  might  have  got  better  terms  if  you  had  held  out  for  them;  that  he 
thinks  Lord  Aberdeen  and  Mr.  Everett  would  have  arranged  it  here 
more  favorably-  for  us  than  Lord  Ashburton  did  there ;  that  if  Lord 
Aberdeen  had  x)roposed  such  and  such  terms  to  Mr.  Everett  they  would 
have  been  agreed  to  in  America,  and  that  Lord  Ashburton  gave  up  cer- 
tain things  for  which  he  did  not  obtain  a  just  equivalent — all  of  which 
is  mere  gratuitous  assumption,  and  may  be  true  or  may  be  false.  How- 
ever, he  owned  that  the  public  was  disposed  to  be  satistied  with  the 
treaty,  and  he  did  not  deny  my  assertion  that  Palmerston  had  com- 
mitted a  blunder  in  attacking  it  with  such  violence." 

Greville's  Memoirs,  Nov.  27,  1842,  vol.  1,  2d  ser. 

"A  great  sensation  has  been  made  here  by  the  publication  of  the 
proceedings  in  the  secret  session  of  the  Senate  at  Washington  when  the 
treaty  was  ratified.  This  brought  out  the  evidence  of  Jared  Sparks, 
who  told  them  of  Franklin's  letter  to  Vergennes,  and  of  the  existence 
of  the  map  he  had  marked,  with  a  boundary  line  corresponding  pre- 
cisely with  our  claim.  People  cry  out  lustily  against  Webster  for  hav- 
ing taken  us  in,  but  I  do  not  think  with  much  reason.  Lord  Ashbur- 
ton told  me  it  was  very  fortunate  that  this  map  and  letter  did  not  turn 
up  in  the  course  of  his  negotiation,  for,  if  they  had,  there  would  have 
been  no  treaty  at  all,  and  eventually  a  scramble,  a  scuffle,  and  proba- 
bly a  war.  Xothing,  he  said,  would  ever  have  induced  the  Americans 
to  accept  our  line  and  admit  our  claim,  and,  with  this  evidence  in  our 
favor,  it  would  have  been  impossible  for  us  to  have  conceded  what  we 
did,  or  anything  like  it.  He  never  would  have  done  so,  and  the  matter 
must  have  remained  unsettled,  and  after  all,  he  said,  it  was  a  dispute 
de  lana  caprina,  for  the  whole  territory  we  were  wrangling  about  was 
worth  nothing,  so  that  it  is  just  as  well  the  discovery  was  not  made  by 
us.  At  the  same  time,  our  successive  Governments  are  much  to  blame 
in  not  having  ransacked  the  archives  at  Paris,  for  they  could  certainly 
have  done  for  a  public  object  what  Jared  Sparks  did  for  a  private  one, 
and  a  little  trouble  would  have  put  them  in  i)ossession  of  whatever  that 
repository  contained." 

Greville's  Memoirs,  Feb.  9,  1643,  vol.  1, 2d  ser. 

"  The  loose  nomenclature  adopted  in  that  treaty  [that  of  1783  between 
the  United  States  and  Great  Britain]  in  the  attempt  to  define  the 
boundaries  of  the  United  States  and  British  possessions  was  the  cause 
of  all  the  subsequent  bickerings  and  angry  feeling.  The 'northwest 
angle'  of  ISTova  Scotia  was  referred  to,  but  there  was  ample  room  for 
endless  diflerence  of  opinion  as  to  what  was  the  northwest  angle.  The 
'highlands'  which  divide  certain  rivers  were  mentioned,  but  no  one  could 
<k'cide  where  they  were.  In  1833  the  arbitration  of  the  King  of  Hol- 
land was  sought,  and  the  decision,  as  usual  in  foreign  arbitrations, 
went  much  against  England.  About  two-thirds  of  the  disputed  terri- 
tory were  given  to  the  United  States;  yet  England  would  have  consid- 
ered herself  bound  Ijy  the  award  had  not  the  United  States  rejected  it. 
•  *  *  At  last,  in  1842,  Lord  Ashburton  was  requested  to  go  to 
Washington  for  the  pur^jose  of  making  a  new  treaty,  and  he  succeeded 
in  his  mission  so  far  as  signing  a  treaty  was  concerned,  but  to  this  hour 
the  i)('0ple  on  the  Canadian  side  consider  that  Lord  Ashburton  per- 
mitted himself  to  be  duped,  and  that  their  interests  were  in  consequenco 

S.  Ml.-*.  1C2— VOL.  11 12  177 


§  150e.]  TREATIES.  [CHAP.  VI. 

mercilessly  sacrificed.  There  were  stories  of  spurious  maps  ami  false 
boundary  lines,  and  for  many  years  tliere  was  a  large  ])arty  in  England, 
as  well  as  iu  the  coh)nies,  in  which  the  deei)est  anger  could  be  stirred 
by  the  mere  mention  of  the  '  Ashburtoii  capitulation.'  To  Mr.  Croker, 
however,  the  new  treaty  appeared  a  reasonable  and  fair  solution  of  the 
])r()l)leMi,  and  he  defended  it  with  the  /A'al  which  never  failed  to  animate 
liim  when  he  believed  that  he  was  right.  Seven  twelfths  of  the  terri- 
tory were  given  to  the  United  States,  and  the  reuuiining  five-twelfths 
to  Great  Biitain. 

"The  story  of  the  map  appeared  in  a  score  of  different  shapes  at  the 
time,  and  in  itself  it  was  very  curious.  Before  Lord  Ashburton  arrived 
at  Washington,  a  maj)  of  the  whole  region  in  dispute  was  discovered  by 
Mr.  Jared  S[)arks,  at  Paris,  and  ui)on  this  map  Benjamin  Franklin  had 
marketl  with  'a  strong  red  line'  the  boundaries  of  the  United  States  as 
fixed  by  the  treaty  of  1783.  This  line  indicated  precisely  the  boundary 
originally  claimed  by  Great  Britain — running  south  of  the  Saint  John's 
Eiver,  and  between  its  headwaters  and  those  of  the  Penobscot  and  the 
Kennebec.  It  gave  all  the  "No  Man's  Land'  to  Great  Britain.  '  It  is 
evident,'  wrote  Mr,  Si)arks,  'that  the  line  from  the  Saint  Croix  to  the 
Canadian  highlands,  is  intended  to  exclude  all  the  waters  running  into 
the  Saint  John's.'  The  difference  to  the  colonies  was  immense ;  but  the 
American  negotiators  kept  the  map  under  lock  and  key,  and  Lord  Ash- 
burton was  not  allowed  to  see  either  that  or  jNIr.  Jared  Si)arks's  letter. 
The  Americans  yielded  a  little  of  their  claims,  and  thus  got  the  credit 
with  the  i)ublic  of  acting  with  generosity.  Great  Britain  thought  she 
had  made  a  good  bargain  by  surrendering  seventh-twelfths  of  the  ter- 
ritories which  she  would  have  obtained  had  the  map  been  produced. 
When  the  facts  became  known  in  P^ngland  it  did  not  tend  to  increase 
the  pubiic  satisfaction  with  the  Ashburton  treaty;  and  as  to  the  feeling 
stirred  up  in  Canada,  readers  of  Judge  Haliburton's  Works  may  still  be 
able  to  form  some  faint  idea  of  it,  although  he  dealt  with  the  subject 
only  from  the  light  and  humorous  point  of  view.  Even  now  it  would 
be  hard  to  persuade  an  old  provincial  that  the  Ashburton  treaty  was 
not  one  of  the  most  unjust  agreements  ever  entered  into  between  two 
great  powers. 

"The  British  Government,  it  must  be  added,  caused  a  search  to  be 
instituted  at  Paris  for  Franklin's  map.  Strange  to  say,  that  map  was 
not  found,  but  another  was,  on  which  a  thick  red  line  had  been  traced, 
giving  all  the  disj^uted  territory  to  the  United  States.  This  was  indeed 
an 'extraordinary  coincidence,' and  to  this  day  it  has  never  been  ex- 
plained." 

Croker  Papers,  1841-'42;  vol.  2,  p.  393. 

"  I  ought  to  have  written  to  you  before,  and  I  suppose  it  is  now  too 
late  to  do  so,  but  1  will  answer  your  question  at  a  venture,  although  I 
hope  to  have  the  opportunity  of  talking  the  matter  over  with  you  at 
Peel's  to-morrow. 

"  1.  Your  first  question  is  the  Dutch  award.  I  answer  that  it  was  an 
honest  judgment.  It  was  unfavorable  to  us,  but  it  proceeded  on  the 
principle  on  which  almost  all  arbitrations  are  conducted,  viz,  that  of 
mutual  concessions.  The  territory  in  dispute  was  not  very  unequally 
divided  between  us.  So  fiir  from  the  decision  of  the  King  being  lairly 
attributable  to  any  feelings  of  resentment  in  consequence  of  our  politi- 
cal conduct  in  the  Netherlands,  the  Americans  rejected  it  because  ho 

178 


CHAP.  VI.]       GREAT    BRITAIN:    ASHBURTON    TREATY,  1842.       [§  150e. 

was  so  notoriously  under  our  influence,  and  because  he  bad  lost  bis 
independence  with  the  loss  of  Belgium. 

"2.  You  next  inquire  about  Livingston's  proposal.  Palmerston  de- 
layed to  notice  it  for  eight  or  nine  months,  as  'far  as  I  can  learn,  for  no 
particular  reason  at  all.    This  is  the  opinion  in  the  office. 

"When  he  did  reject  it  he" gave  a  very  bad  reason  for  doing  so,  when 
he  required  the  previous  assent  of  Maine.  This  was  the  business  of  the 
Central  Government,  and  not  ours.  If  we  had  the  Government  at  Wash- 
ington committed  to  the  principle,  this  quarrel  with  the  State  of  Maine 
was  of  no  consequence  to  us,  and,  indeed,  ought  rather  to  have  been 
encouraged. 

"But  I  do  not  think  Palmerston  was  so  very  wrong  in  rejecting  Liv- 
ingston's proposal.  There  is  no  doubt  that  he  would  have  carried  his 
northwest  line  across  the  Saint  John's  until  he  found  the  highlands, 
which,  according  to  his  interpretation  of  the  treaty,  could  only  be  to  the 
north  of  the  Saint  John's.  No  doubt  had  he  diverged  from  the  due 
north  line  he  would  have  found  highlands  to  the  south  of  the  Saint 
John's,  but  he  would  have  said  that  these  did  not  fulfill  the  conditions 
of  the  treaty  of  dividing  waters,  &c. 

"Ashburton  was  not  instructed  to  renew  Livingston's  proposal,  but 
on  the  contrary,  to  give  no  encouragement  to  it  if  it  should  be  reproduced. 

"3.  You  must  know  by  this  time  why  I  expressed  myself  greatly  dis- 
satisfied with  the  message  of  the  President.  The  manner  in  which  he 
treated  the  subject  of  the  right  of  search  was  reallj-  scandalous.  His 
mention. of  the  Oregon  question  was  also  most  nucandid.  When  he 
talked  of  pressing  us  to  enter  into  negotiation  he  had  in  his  pocket  a 
most  friendly  overture  from  us  which  he  had  already  answered  favor- 
ably. 

"Ashburton  had  full  instructions  ujjon  this  subject,  and  if  he  had 
remained  long  enough  in  the  United  States  I  have  no  doubt  that  it 
would  have  been  settled.  But  the  pressing  affairs  being  brought  to  a 
close  he  was  naturally  desirous  of  returning  home. 

"  4.  I  think  we  have  no  strict  public  right  to  complain  of  Webster  in  the 
affair  of  Franklin's  map.  It  was  most  fortunate  that  it  was  not  discov- 
ered by  us  before  the  treaty  was  concluded,  for  it  might  not  have  been  easy 
for  us  to  proceed  with  such  evidence  in  our  possession.  We  must  have 
gone  to  an  arbitration  before  the  end  of  which  war  would  probably  have 
ensued.  Convincing  as  the  letter  and  map  must  be  to  any  impartial 
man,  they  have  not  convinced  the  Americans,  who  still  maintain  their 
line  of  boundary  in  spite  of  them. 

"Although  we  cannot  complain  of  Webster  so  as  to  vitiate  the  agree- 
ment, it  is  a  piece  of  concealment  and  of  disingenuousness  which  must 
inevitably  produce  an  unfavorable  impression  against  him  in  all  honor- 
able minds. 

"It  is  a  strange  thing  that  neither  letter  nor  map  arc  to  be  found  at 
Paris ;  at  least  we  have  hitherto  failed  in  doing  so.  But  we  have  found 
another  map  altogether  in  favor  of  the  American  claim.  I  will  tell  you 
the  particulars  of  this  curious  affair  when  we  meet  to-morrow." 

Lord  Aberdeen  to  Mr.  Croker,  Feb.  25,  1843.     Crokor  Tap.,  chap,  xxii,  1841-'42, 
vol.  2,  398. 

With  reference  to  Mr.  Livingston's  proi)osal,  above  noticed,  the  fol- 
lowing note  is  appended  in  the  Croker  Papers  : 

"Mr.  Livingston  was  then  the  Secretary  of  State  in  General  Jack- 
son's ('abinet.     He  i)roposod  tlia.t  a  scicntilic  snryey  of  the  dispute4 

17^ 


§  IbOe.]  TREATIES.  [CIIAP.  VI. 

territory  should  be  uuide,  and  that  from  the  '  higjhlands,'  when  found,  a 
line  should  be  drawn  straight  to  the  head  of  the  Saint  Croix,  and  that 
this  should  be  regarded  as  the  northeastern  boundary  of  tlie  United 
States.  This  ])roposition,  it  was  generally  admitted,  would  have  given 
the  whole  or  the  greater  i)art  of  the  disputed  territory  to  England. 
Jiut  Lord  Palmerston  lirst  [)igeonholed  it  for  some  months,  and  then 
saddled  it  with  conditions  wliieh  made  it  impossible  for  the  United 
States  to  accept  it.  This  was  universally  considered  a  great  mistake 
on  the  i)art  of  England." 

"The  story  of  the  map  is  undeniable,  and  has,  I  believe,  been  truly 
told.  I  shall  have  much  to  say  about  it  when  I  see  you,  but  it  is  rather 
an  extensive  subject  to  write  about,  and  in  some  respects  rather  a  deli- 
cate one.  Jared  Sparks,  the  American  historian,  rummaging  in  the  ar- 
chives of  the  French  ibreign  ollice,  tirst  found  the  letter  from  Franklin 
to  Vergennes  referring  to  the  map,  which  he  instantly  searched  for  and 
found  in  the  midst  of  copies,  maps,  and  charts  at  the  depot  of  the  oflice, 
and,  though  not  doubting  tliat  he  should  lind  the  American  case  con- 
tirmed,  to  his  inexpressible  surprise,  he  found  the  precise  contrary. 
The  map  was,  it  seems,  used  to  persuade  Maine  to  yield,  and  subse- 
<piently  to  i)ersuade  the  Senate  to  ratify,  my  capitulation.  ]\[r.  Hives, 
the  reporter  of  the  committee  of  the  Senate  to  whic-h  the  treaty  was 
referred,  reports  that  the  committee  were  unanimously  of  opinion  that 
the  American  right  was  not  shaken  by  this  discovery,  but  nevertheless 
give  their  opinion  that  it  would  not  be  safe  to  go  to  a  new  arbitration 
with  such  a  document  against  them.  The  truth  is  that,  2)rohahhj,  but 
tor  this  discovery,  there  would  have  been  no  treaty,  and  if  the  secret 
had  been  known  to  me  earlier  I  could  not  have  signed  it.  ^Ainsi  tout 
est  pour  le  mieux  dans  Ic  meiUcnr  dcs  mondes  possibles  J  The  public  arc 
very  busy  with  the  question  whether  Webster  was  bound  in  honor  to 
damage  his  own  case  by  telling  all.  I  have  put  this  to  the  consciences 
of  old  di])lomatists  without  getting  a  satisfactory  answer.  ]\Iy  own 
opinion  is  that  in  this  respect  no  reproach  can  lairly  be  made,  but  the 
conduct  of  both  President  and  Secretary  is  most  extraordinary  in  the 
other  matters  relating  to  my  treaty." 

Lord  Ashburtou  to  Mr.  Crokcr,  Feb.  7,  1843.     Croker  Pap.,  cliap.  xxii,  1841-42, 
vol.  2,  400. 

In  the  same  volume  is  another  letter  from  Lord  Ashburtou  to  Mr. 
Croker,  dated  February  13,  1843,  in  relation  to  the  treaty.  In  it  he 
blames  Lord  Palmerston  for  not  having  had  the  French  records 
searched.  He  adds  that  by  the  usages  of  diplomacy  Mr.  Webster  was 
not  bound  to  damage  his  own  case,  and  he  made  no  "  personal  pledge 
of  opinion  as  to  the  intentions  of  the  parties."  The  map  was  only  con- 
clusive as  to  Franklin's  intentions,  and  not  as  to  those  of  the  other  ne- 
gotiators, or  as  to  the  meaning  of  the  words  of  the  treaty  of  1783. 
Their  intentions  as  to  the  Saint  Croix  have  no  weight  against  the  sub- 
sequent determination,  by  treaty,  what  is  the  true  Saint  Croix  and  what 
is  its  head. 

"  Do  nothing  and  say  nothing  at  present  about  the  treaty.  So  far  as 
any  Paris  map  is  concerned,  we  are  in  the  crisis  of  inquiry,  and  the 
present  state  of  it  is  extraordinary. 

"  Canning  was  at  Paris  in  1820;  made  search  for  documents  relating 
to  the  boundary  and  treaty  of  1783  ;  oould  find  nothing. 

180 


OKAr.  VI.]      GREAT    BRITAIN:    ASIIBURTON    TREATY,  1842.        [§150^. 

"  Jiiilwt,  r  can  liud  no  trace  of  a  letter  iioui  Franklin  ;  no  trace  of  tlie. 
map  ineutioued  by  Jared  Sparks.  But,  strange  to  say,  be  does  find  a 
map,  of  which  he  sent  us  the  tracing,  a  map  api)arently  deposited  many 
years  since,  which  follows  exactly  with  a  crimson  line  the  boundary 
claimed  by  the  United  States. 

"  Jared  Sparks  cannot  have  lied  so  enormously  as  this  discovery 
would  implj'. 

'^  Notwithstanding  the  failure  to  find  it,  there  must,  I  think,  be  a 
letter  from  Franklin  and  a  raai)  just  as  Sparks  describes.  1  tell  you 
all  I  know  at  present.  Bulwer  is  a  very  clever  fellow,  with  great  ex- 
perience iu  such  matters  as  that  which  he  has  been  investigating.  He 
writes  two  letters ;  one  after  a  short  interval;  and  iu  the  second  as  well 
as  the  first  savs  he  cannot  confirm  the  alleged  discoveries  of  Jared 
Sparks." 

Sir  Robert  Peel  to  Mr.  Croker,  Feb.  23,  1843.     Croker  Tap.,  cbap.  xxii,  1841-'42, 
vol.2,  402. 

"Pending'  the  negotiation  of  the  treaty  of  Washington,  in  the  spriug- 
and  summer  of  1842,  Mr.  Webster  was  made  acquainted  with  the  ex- 
istence atParisof  acopy  of  D'Anville's  map  of  America  on  a  small  scale, 
on  which  the  boundary  between  the  British  Provinces  and  the  United 
States  was  indicated  by  a  red  line,  in  a  manner  favorable  to  the  British 
claim.  This  map  (which  was  soon  extensively  known  as  the  red  line 
map)  had  been  discovered  by  President  Sparks  in  the  foreign  ofQce  at 
Paris.  He  also  found  a  letter  from  Dr.  Franklin  to  the  Count  de  Ver- 
gennes,  from  which  it  appeared  that  the  boundary  had  been  delineated 
by  Dr.  Franklin  upon  some  map  at  the  request  of  the  count  and  for  his 
information.  There  was  no  proof,  however,  that  this  letter  referred  to 
the  map  discovered  by  Mr.  Sparks. 

"After  the  negotiation  of  the  treaty  and  the  publication  of  the  de- 
bates in  the  Senate  on  the  question  of  its  ratification,  much  importance 
was  attached  by  the  opposition  i)ress  in  England  to  this  map,  as  prov- 
ing incontestably  the  soundness  of  the  British  claims  relative  to  bound- 
ary. It  was  also  absurdly  made  a  matter  of  reproach  against  Mr. 
Webster  that  he  had  not  as  soon  as  he  became  acquainted  with  the  ex- 
istence of  this  map  communicated  it  to  Lord  Ashburton. 

"  So  conclusive  was  this  piece  of  evidence  deemed  in  England  in 
favor  of  the  British  claim,  and  so  much  importance  was  attached  to  it 
in  the  debates  in  Parliament,  that  it  became  necessary  for  Sir  Eobert 
Peel  by  waj'  of  offset  to  refer  to  another  map  not  before  publicly  known 
to  exist,  namely,  a  copy  of  Mitchell's  map,  which  had  been  used  by  Mr. 
Oswald,  the  British  commissioner  for  negotiating  the  provisional  treaty, 
and  by  him  sent  home  to  his  Government.  This  map  had  been  pre- 
served in  the  library  of  George  the  Third,  and  with  that  library  was 
sent  to  the  British  Museum.  On  this  map  the  line  as  claimed  by  the 
United  States  is  boldly  and  distinctly  traced  throughout  its  whole  ex- 
tent, and  the  words  '  boundary  as  described  by  Mr.  Oswald,'  written  in 
four  places  with  great  plainness.  It  was  asserted  by  Lord  Ihougham 
in  the  House  of  Peers  that  these  words  are  in  the  handwriting  of  George 
the  Third. 

"The  writer  of  this  note  was  assured  by  Lord  Aberdeen  that  he  had 
no  knowledges  of  the  existence  of  this  maj)  till  after  the  conclusion  of 
the  Treaty  of  Washington.  He  was  also  assured  by  Lord  Ashburton 
that  he  was  equally  ignorant  of  it  till  after  his  return  from  America.     It 

LSI 


§  150^.]  TREATIES.  foiIAl'.  VI. 

is  sui)poscHl  ti)  have  het'ii  accidentally  tli.sco\  ered  m  tlie  llritish  ^lii.seinn, 
and,  under  Lord  Melbourne's  administration,  to  have  been  placed  in  the 
hands  of  Mr.  Featherstonhanjjfh  with  other  documents  and  materials 
relative  to  the  boundary,  althouj^li  no  allusion  to  this  map  is  made  in 
his  re])ort.  lie  v>as  directed  by  liOrd  Aberdeen  to  hand  over  to  Lord 
Ashburton  all  the  documents  and  maps  in  his  possession,  but  this,  by 
far  tlie  most  imi)ortant  of  them  all,  was  not  amonj;;  those  transferred  by 
him. 

"At  about  the  same  time  a  copy  of  Mitchell's  maj)  was  found  among 
the  papers  of  Mr.  Jay,  one  of  the  American  commissioners  for  ne<;otia- 
t'lug  the  treaty  of  1783.  It  contains  a  line  drawn  from  the  mouth  to  the 
source  of  the  Saint  John's,  which  is  described  ui)on  the  map  as  '  Mr. 
Oswald's  line.'  It  no  doubt  rei)resents  the  boundary  line  as  olfered  by 
Mr.  Oswald  on  the  Sth  of  October,  1782,  but  not  ajiiced  to  by  the  Brit 
ish  Government. 

"  On  the  discovery  of  Mr.  Jay's  map,  a  meetin<^  of  the  ]S'ew  York  Llis- 
torical  Society  was  held,  at  which  a  very  learned  memoir  on  the  North- 
eastern Boundary  was  read  by  the  venerable  Mr.  Gallatin,  who  had 
acted  as  one  of  the  commissioners  for  i)re]iarin<j  the  American  state- 
ment to  be  submitted  to  the  King  of  the  Netherlands  as  arbiter,  and 
whose  knowledge  of  the  subject  was  not  surpassed,  if  equaled,  by  that 
of  any  other  person. 

"At  the  time  this  meeting  was  held,  the  knowledge  of  Oswald's  map 
had  not  reached  America.  The  simultaneous  discovery  of  these  two 
maps  in  England  and  the  United  States,  tlie  most  important  in  their 
bearing  on  the  controversy  of  all  the  maps  produced  in  the  discussion — 
one  of  them,  in  fact  (Oswald's),  decisive  as  to  the  point  at  issue,  a  dis- 
covery not  made  till  after  the  conclusion  of  the  treaty  of  1842 — is  among 
tlie  most  singular  incidents  in  the  history  of  the  protracted  negotiations 
which  resulted  in  that  treaty.  Taken  together,  and  in  connection  with 
the  official  correspondence,  they  leave  no  doubt  that  Mr.  Jay's  map  ex- 
hibits the  proposed  line  of  the  8th  of  October,  1782,  and  that  Oswald's 
maj)  exhibits  the  line  of  treaty  of  1783,  and  which  is  that  always  con 
tended  for  by  the  United  States. 

"  Mr.  Webster,  happening  to  be  in  New^  York,  was  present  by  invita 
tion  at  the  meeting  of  the  Historical  Society  above  alluded  to,  and  after 
the  reading  of  Mr.  Gallatin's  memoir,  having  been  called  u])on  by  its 
vice-president,  Mr.  W.  Beach  Lawrence,  made  the  following  speech." 

Mr.  Everett's  introductory  note  to  Mr.  Webster's  speech  on  the  northeastern 
boiindary,  2  "Webster's  Works,  143.  See  discussion  in  71  London  Quart. 
Rev.,  5S2. 

"  The  conflict  of  these  maps  is  undoubtedly  a  pretty  remarkable  cir- 
cumstance. The  great  mass  of  contemporaneous  ma])s  are  favorable  to 
the  claims  of  the  United  States,  and  the  remarks  read  by  the  president 
of  the  society  are  most  cogent  to  evince  this.  The  treaty  negotiated  in 
Paris  by  Mr.  Oswald,  on  the  part  of  the  British  Government,  met  with 
great  opposition  in  Parliament.  It  was  opposed  on  the  very  ground  that 
it  made  a  line  of  boundary  '  exceedingly  inconvenient  to  Great  Britain ' ; 
or,  as  a  leading  member  of  Parliament  said,  that  it  made  the  United 
States  masters  both  of  Nova  Scotia  and  New  Brunswick ;  and  maps 
were  published  exhibiting  this  line  exactly  as  claimed  by  the  United 
States.  These  maps  accompanied  the  parliamentary  papers  and  de 
bates.    Now,  it  is  very  extraordinary,  it  would  be  deemed  almost  in 

182 


CIlAr.  VI.]       GREAT    BRITAIN:    ASHBURTON    TREATY,  1812.       [§  150e. 

credible,  that,  if  these  maps,  thus  making  out  a  case  on  which  so  much 
stress  had  been  laid  agaiust  the  British  ministry  and  their  negotiation, 
had  been  erroneous,  nobody  in  the  foreign  office,  nor  the  minister,  nor 
Mr.  Oswald  himself,  should  have  one  word  to  suggest  against  the  accu- 
racy of  these  maps.  They  defended  the  treaty  and  boundary  as  pre- 
sented on  the  maps,  uot  going  on  the  ground  at  all  that  those  maps 
exhibited  any  erroneous  presentation.     *     *     * 

"  Every  office  in  Washington  was  ransacked,  every  book  of  authority 
consulted,  the  whole  history  of  all  the  negotiations,  from  the  treaty  of 
Paris  downward,  was  produced,  and  among  the  rest  this  discovery  in 
Paris,  to  go  for  what  it  was  worth.  If  these  afforded  any  evidences  to 
their  (the  commissioners  of  Maine  and  Massachusetts)  minds  to  produce 
a  conviction  that  it  might  be  used  to  obscure  their  rights,  to  lead  an 
arbitration  into  an  erroneous,  unjust  compromise,  that  was  all  for  their 
consideration.  The  map  was  submitted  as  evidence,  together  witn  all 
the  other  proofs  and  documents  in  the  case,  without  the  slightest  res- 
ervation on  the  part  of  the  Government  of  the  United  States.  I  must 
confess  that  I  did  not  think  it  a  very  urgent  duty  on  my  part  to  go 
to  Lord  Ashburton  and  tell  him  that  1  had  found  a  bit  of  doubtlul 
evidence  in  Paris,  out  of  which  lie  might  perhaps  make  some- 
thing to  the  prejudice  of  our  claims,  and  from  which  he  could  set  up 
higher  claims  for  himself,  or  throw  further  uncertainty  over  the  whole 
matter." 

Webster's  speech  oa  the  uorthcastem  bouutlary,  2  Webster's  Works,  149,  153. 
Ou  the  "red  line"  question,  see  further  2  Benton's  Thirty  Years,  421. 

"  In  this  state  of  things,  he  (Mr.  Webster)  made  the  only  use  of  it 
(Sparks'  copy)  which  could  be  legitimately  made,  in  communicating  it 
to  the  commissioners  of  the  State  of  Maine  and  of  Massachusetts  and  to 
the  Senate  of  the  United  States,  as  a  piece  of  conflicting  evidence  en- 
titled to  consideration,  likely  to  be  urged  as  of  great  importance,  as  it 
was  derived  from  a  source  open  to  the  other  party,  if  the  discussion 
should  be  renewed,  increasing  the  difficulties  which  already  surrounded 
the  question,  and  thus  furnishing  new  grounds  for  agreeing  to  the  pro- 
posed conventional  line.  *  *  *  This  would  seem  to  be  going  as  far 
as  reason  and  honor  required,  in  reference  to  an  uuauthenticated  docu- 
ment, having  none  of  the  properties  of  legal  evidence,  not  exhibited  by 
the  ojjposite  party,  though  drawn  from  a  source  equally  open  to  theniy 
and  of  a  nature  to  be  outweighed  by  contradictory  evidence  of  the  same 
kind,  which  was  very  soon  done." 

Mr.  Everett's  address  on  Mr.  Webster,  Sept.  17,  1859,  4  Everett's  Orations,  213. 
In  this  address  the  "red  line"  question  is  elaborately  discussed. 

"  It  is  a  remarkable  fact  that,  on  each  side  of  the  Atlantic,  the  treaty 
was  attacked  as  a  settlement  productive  of  injury  to  the  honor  and  the 
mutual  interests  of  each  country.  JJy  Lord  Palmerston  it  was  stigma- 
tizccl  as  the  Ashburton  capitulation,  whilst  Mr.  Webster  was  compelled 
to  deliver  a  most  elaborate  defense  of  the  policy  of  his  Government  in 
concluding  the  convention." 

Al)dy'H  Kent  (1B7H),  l.'>2.     See  defense  of  this  treaty  in  71  London  Quart.  Rev., 
\j('A),  where  the  history  of  prior  negotiations  is  f^iven. 

183 


§  150/]  TREATIES.  [chap.  VI. 

(ij)    CLAYTON-UULWEU   TRKATY   (I80O). 

The  aeciuisition  of  Calilbruia  in  May,  1848,  by  the  treaty  of  Gauda- 
liipe-IIidalgo,  and  tlie  vast  rush  of  jjopnlation  wliieli  followed  almost 
immediately  on  the  development  of  the  gold  mines  to  that  i)ortion  of 
the  Pacific  coast,  made  the  opening  of  interoceanic  communication  a 
matter  of  paramount  importance  to  the  United  States.  Jn  December, 
1840,  had  been  ratilied  a  treaty  with  Xew  Granada  (which  in  1801' 
assumed  the  name  of  Colombia)  by  which  aright  ol"  transit  over  the 
Isthmus  of  Panama  was  given,  to  the  United  States,  and  the  free  transit 
over  the  Isthmus  ''from  the  one  to  the  other  sea"  guaranteed  by  both 
of  the  contracting  powers  [supra,  ^  145).  Under  the  shelter  of  this  treaty 
the  Panama  liailroad  Comjiany,  composed  of  citizens  of  the  United 
States,  and  supplied  by  capital  from  the  United  States,  was  organized 
in  ISoO  and  i)ut  in  oi)eration  iu  1855.  In  1849,  before,  therefore,  this 
company  had  taken  shape,  the  United  States  entered  into  a  treaty  with 
Nicaragua  for  the  opening  of  a  ship-canal  from  Greytown  (San  Juan) 
on  the  Atlantic  coast  to  the  Pacific  coast,  by  way  of  the  Lake  of  Nica- 
ragua. Greytown,  however,  was  then  virtually  occupied  by  British 
settlers,  mostly  from  Jamaica  {infra,  §  295),  and  the  whole  eastern 
coast  of  Nicaragua,  so  far  at  least  as  the  eastern  terminus  of  such  a 
canal  was  concerned,  was  held,  so  it  was  maintained  by  Great  Britain, 
by  the  Mosquito  Indians,  over  Avhom  Great  Britain  claimed  to  exer- 
cise a  protectorate.  That  the  Mosquito  Indians  had  no  such  settled 
territorial  site  ;  that  if  they  had.  Great  Britain  had  no  such  protecto- 
rate or  sovereignty  over  them  as  authorized  her  to  exercise  dominion 
over  their  soil,  even  if  they  had  any,  are  positions  which,  as  will  be  here- 
after seen  {infra,  §  295),  the  United  States  has  repeatedly  aflirraed.  But 
the  fact  that  the  pretension  was  set  up  by  Great  Britain,  and  that  though 
it  were  baseless,  any  attempt  to  force  a  canal  through  the  Mosquito 
country  might  precipitate  a  war,  induced  Mr.  Clayton,  Secretary  of  State 
in  the  administration  of  General  Taylor,  to  ask  through  Sir  II.  L.  Bul- 
wer,  British  minister  at  Washington,  the  administration  of  Lord  John 
Eussell,  (Lord  Palraerston  being  then  foreign  secretary,)  to  withdraw 
the  British  pretensions  to  the  coast  so  as  to  permit  the  construction  of 
the  canal  under  the  joint  auspices  of  the  United  States  and  of  Nicara- 
gua. This  the  British  Government  declined  to  do,  but  agreed  to  enter 
into  a  treaty  for  a  joint  protectorate  over  the  proposed  canal.  Of  this 
treaty  (Clayton-Bulwer)  the  following  is  a  summary  : 

The  preamble  states  that  the  contracting  parties  "  being  desirous  of 
consolidating  the  relations  of  amity  which  so  happily  subsist  between 
them  by  setting  forth  and  fixing  in  a  convention  their  views  and  inten- 
tions with  reference  to  any  means  of  communication  by  ship-canal  which 
may  be  constructed  between  the  Atlantic  and  Pacific  Oceans  hi/  icay  of 
the  river  San  Juan  de  Nicaragua,  and  either  or  loth  of  the  JaJces  of  Nicara- 
gua or  Managua  to  any  j)ort  or  place  on  the  Pacific  Ocean.'''' 

The  treaty  ]n'oceeds  as  follows  : 

"Akticle  I.  The  Governments  of  the  United  States  and  of  Great 
Britain,  hereby  declare  that  neither  the  one  nor  the  other  will  ever  ob- 
tain or  maintain  for  itself  any  exclusive  control  over  the  said  ship-canal; 
agreeing  that  neither  will  ever  erect  or  maintain  any  ibrtifications  coin- 
manding  the  same,  or  in  the  vicinity  thereof,  or  occupy,  or  fortify,  or  colo- 
nize, or  assume  or  exercise  any  dominion  over  Nicaragua,  Costa  Rica,  the 

184 


CnAP.VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.   [§150/ 

Ilosquito  coast,  0)  any  part  of  Central  A)nerica  ;  nor  will  cither  male  use 
of  any  protection  icliicli  either  affords,  or  luay  aflord,  or  any  alliance  which 
either  has  or  may  have  to  or  with  any  state  or  people,  for  the  purpose 
of  erecting  or  maintaining  any  such  fortifications,  or  of  occupying,  for- 
tifying, or  colonizing  Nicaragua,  Costa  Eica,  the  Alosquito  coast,  or  any 
part  of  Central  America,  or  of  assuming  or  exercising  dominion  over 
the  same;  nor  will  the  United  States  or  Great  Britain  take  advantage 
of  any  intimacy,  or  use  any  alliance,  connection,  or  influence,  that  either 
may  possess,  with  any  State  or  Government  through  tchose  territory  the 
said  canal  may  ptass,  for  the  purpose  of  acquiring  or  holding,  directly 
or  indirectly,  for  the  citizens  or  subjects  of  the  one,  any  lights  or  ad- 
vantages in  regard  to  commerce  or  navigation  through  the  said  canal 
which  shall  not  be  offered  on  the  same  terms  to  the  citizens  or  subjects 
of  the  other." 

Article  II  provides  that  in  case  of  war  between  the  contracting  parties 
vessels  of  either  traversing  the  canal  shall  be  exempt  from  blockade, 
detention,  or  capture  by  the  other. 

By  Article  III  it  is  provided  that,  "  in  order  to  secure  the  construc- 
tion of  the  said  canal,  the  contracting  parties  engage  that,  if  any  such 
canal  shall  be  undertaken  upon  fair  and  equitable  terms  by  any  parties 
having  the  authority  of  the  local  Government  or  Governments  through 
whose  territory  the  same  may  pass,  then  the  persons  employed  in  mak- 
ing the  said  canal,  and  their  property  used  or  to  be  used  for  that  object, 
shall  be  protected,  from  the  commencement  of  the  said  canal  to  its  com- 
pletion, by  the  Governments  of  the  United  States  and  Great  Britain, 
from  unjust  detention,  confiscation,  seizure,  or  any  violence  whatsoever. 

By  Article  IV  it  is  provided  that  "the  contracting  parties  will  use 
whatever  influence  they  respectively^  exercise  with  any  state,  states,  or 
Governments  possessing,  or  claiming  to  possess,  any  jurisdiction  or  right 
over  the  territory  which  the  said  canal  shall  traverse,  or  which  shall  be 
near  the  waters  applicable  thereto  in  order  to  induce  such  states  or  Govern- 
ments to  facilitate  the  construction  of  the  said  canal  by  every  means  in 
their  power;  and,  furthermore,  the  United  States  and  Great  Britain 
agree  to  use  their  good  offices,  wherever  or  however  it  may  be  most 
expedient,  in  order  to  procure  the  establishment  of  two  free  ports,  one 
at  each  end  of  the  said  canal." 

The  remaining  articles  are  as  follows: 

"Art.  V.  The  contracting  parties  further  engage  that  when  the  said 
canal  shall  have  been  completed  they  will  protect  it  from  interruption, 
seizure,  or  unjust  confiscation,  and  that  they  will  guarantee  the  neu- 
trality thereof,  so  that  the  said  canal  may  forever  be  open  and  free,  and 
the  capital  invested  therein  secure.  Nevertheless,  the  Governments  of 
the  United  States  and  Great  Britain,  in  according  their  protection  to 
the  construction  of  the  said  canal,  and  guaranteeing  its  neutrality  and 
security  when  completed,  always  understand  that  this  protection  and 
guarantee  are  granted  conditionally,  and  may  be  withdrawn  by  both 
Governments,  or  either  Government,  if  both  Governments  or  either 
Government  should  deem  that  tlie  persons  or  con]i)any  undertaking  or 
managing  the  same  adopt  or  establish  such  regulations  concerning  the 
traffic  thereupon  as  are  contrary  to  the  spiiit  and  intention  of  this  conven- 
tion, either  by  making  unfair  di.scriniinations  in  favor  of  the  commerce 
of  one  of  the  contracting  partii-s  over  tlie  conimerce  of  the  other,  or  by 
imposing  op])res!sive  exactions  or  unreasonable  tolls  ui)on  passengers, 
vessels,  goods,  wares,  merchandise,  or  other  articles.  Neither  party, 
however,  shall  withdraw  the  aloresaid  i)rotection  and  guarantee  with, 
out  first  giving  six  months'  notice  to  llie  other. 

185 


§  150/]  TREATIES.  [cnAr.  VI. 

"Akt.  \I.  The  coutractiug  parties  iu  this  couvcutiou  engage  to  in- 
vite every  state  with  whicli  both  or  either  have  friendly  intercourse  to 
enter  into  stii)ulations  with  them  siniihir  to  those  wliich  they  have  en- 
tered into  witli  eaeli  other,  to  the  end  that  all  other  states  may  share 
in  the  honor  and  advantage  of  having  contributed  to  a  work  of  such 
general  interest  and  importance  as  the  canal  herein  contemplated. 
And  the  contracting  parties  likewise  agree  that  each  shall  enter  into 
treaty  stipulations  with  such  of  the  Central  American  States  as  they 
may  deem  advisable  for  the  purpose  of  more  elfectually  carrying 
out  the  great  design  of  this  convention,  namely,  that  of  construct- 
ing and  maintaining  the  said  canal  as  a  ship  communication  between 
the  two  oceans,  for  the  bonelit  of  mankind,  on  eipial  terms  to  all, 
and  of  protecting  the  same;  and  they  also  agree  that  the  good  oflices 
of  either  shall  be  employed,  when  requested  by  the  other,  in  aiding 
and  assisting  the  negotiation  of  such  treaty  stipulations;  and  should 
any  differences  arise  as  to  right  or  ])roperty  over  the  territory  through 
which  the  said  canal  shall  i)ass,  between  the  States  or  Governments 
of  Central  America,  and  such  differences  should  in  any  way  impede 
or  obstruct  the  execution  of  the  said  canal,  the  Governments  of  the 
United  States  and  Great  Britain  will  use  their  good  offices  to  settle 
such  differences  in  the  manner  best  suited  to  promote  the  interests  of 
the  said  canal,  and  to  strengthen  the  bonds  of  friendship  and  alliance 
which  exist  between  the  contracting  parties. 

"Art.  VII.  It  being  desirable  that  no  time  should  be  unnecessarily 
lost  in  commencing  and  constructing  the  said  canal,  the  Governments 
of  the  United  States  and  Great  Britain  determine  to  give  their  sup- 
port and  encouragement  to  such  persons  or  company  as  may  first  offer 
to  comnuMice  the  same,  with  the  necessary  capital,  the  consent  of  the 
local  authorities,  and  on  such  principles  as  accord  with  the  spirit 
and  intention  of  this  convention ;  and  if  any  persons  or  comi)any 
should  already  have,  with  any  state  through  which  the  proposed 
ship-canal  may  pass,  a  contract  for  the  construction  of  such  a  canal 
as  that  specified  in  this  convention,  to  the  stipulations  of  which 
contract  neither  of  the  contracting  parties  in  this  convention  have  any 
just  cause  to  object,  and  the  said  persons  or  company  shall,  moreover, 
have  made  preijarations  and  expended  time,  money,  and  trouble  on  the 
faith  of  such  contract,  it  is  hereby  agreed  that  such  persons  or  company 
shall  have  a  priority  of  claim  over  every  other  person,  persons,  or  com- 
])an3^  to  the  protection  of  the  Governments  of  the  United  States  and 
Great  Britain,  and  be  allowed  a  year  from  the  date  of  the  exchange  of 
the  ratifications  of  this  convention  for  concluding  their  arrangements 
and  presenting  evidence  of  sufficient  capital  subscribed  to  accomplish 
the  contemplated  undertaking;  it  being  understood  that  if,  at  the  ex- 
piration of  the  aforesaid  period,  such  persons  or  comi)any  be  not  able 
to  commence  and  carry  out  the  i)roposed  enterprise,  then  the  Govern- 
ments of  the  United  States  and  Great  Britain  shall  be  free  to  afibrd 
their  protection  to  any  other  persons  or  company  that  shall  be  ])re- 
pared  to  commence  and  proceed  with  the  construction  of  the  canal  in 
question. 

"  Art.  VIII.  The  Governments  of  the  United  States  and  Great  Brit- 
ain having  not  only  desired,  in  entering  into  this  convention,  to  accora- 
j)lish  a  ])articular  object,  but  also  to  establish  a  general  principle, 
they  hereby  agree  to  extend  their  protection,  by  treaty  sti])ulations, 
to  any  other  prat^ticable  communications,  whether  by  canal  or  rail- 
way, across  the  isthmus  which  connects  North  and  South  America,  and 

18G 


fllAP.VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.  [§150/ 

especiall}'  to  the  iuteroceauic  communications,  should  the  same  prove 
to  be  practicable,  whether  by  canal  or  railway,  which  arc  now  proposed 
to  be  established  by  the  way  of  Tehuautepec  or  Panama.  In  granting, 
however,  tbeir  joint  protection  to  any  such  canals  or  railways  as  are  by 
this  article  specified,  it  is  always  understood  by  the  United  States  and 
Great  Britain  that  the  parties  constructing  or  owning  the  same  shall 
impose  no  other  charges  or  conditions  of  traffic  thereupon  than  the 
aforesaid  Governments  shall  approve  of  as  just  and  equitable;  and 
that  the  same  canals  or  railways,  being  open  to  the  citizens  and  sub- 
jects of  the  United  States  and  Great  Britain  on  equal  terms,  shall  also 
be  open  on  like  terms  to  the  citizens  and  subjects  of  every  other  state 
which  is  willing  to  grant  thereto  such  p^rotection  as  the  United  States 
and  Great  Britain  engage  to  afford." 

At  the  time  of  the  execution  of  this  treaty  the  British  Government 
claimed  dominion  over  the  (1)  Bay  Islands,  including  the  island  of  Euatan, 
and  other  islands  on  the  ocean  adjoining  Honduras  ;  (2)  the  Mosquito 
coast;  and  (3)  the  Belize,  or  British  Honduras.  This  dominion  the 
British  Government  continued  after  the  execution  of  the  treaty  to  ex- 
ercise in  defiance  of  the  renunciation  contained  in  the  first  article  of  the 
treaty  as  above  given.  An  attemptwasmadetoremovethecollision  which 
was  thus  provoked  by  a  new  treaty  (Clarendon-Dallas),  which,  however, 
failed  from  the  non-acceptance  by  Great  Britain  of  the  amendments  in- 
troduced into  the  treaty  by  the  Senate  of  the  United  States.  Great 
Britain,  on  her  side,  undertook  to  at  least  lessen  the  cause  of  offense  by 
negotiating,  in  November,  1859,  a  treaty  with  Honduras,  in  which  she 
stipulated  to  surrender  to  that  Eepublic  her  claim  to  Euatan  and  the 
Bay  Islands;  and  in  the  same  year  she  executed  a  treaty  with  Guate- 
mala for  the  defining  the  boundaries  of  British  Honduras,  or  the  Belize, 
as  it  is  more  proj^erly  to  be  called.  In  January,  18G0,  she  entered  into 
a  treaty  with  Nicaragua  by  which  she  with  some  qualifications  withdrew 
from  the  protectorate  over  the  Mosquito  country.  These  treaties  having 
been,  in  18G0,  communicated  officially  to  President  Buchanan,  he  stated, 
as  will  be  seen  in  his  last  annual  message  (Dec,  18G0),  that "  the  discordant 
constructions  of  the  Clay  ton-Bulwer  treaty  between  the  two  Governments, 
which  at  different  periods  of  the  discussion  bore  a  threatening  aspect, 
have  resulted  in  a  final  settlement  entirely  satisfactory  to  this  Govern- 
ment." (See  supra,  §  145).  But  this  statement  of  President  Buchanan, 
as  will  be  seen  at  the  close  of  this  section,  is  based  on  the  assumption 
that  Great  Britain  had  withdrawn  not  merely  from  the  technical  but 
from  the  actual  protectorate  of  the  Mosquito  country,  and  had  abso- 
lutely ceased,  as  the  first  article  of  the  Clayton-Bulwer  treaty  requires, 
to  "take  advantage  of  any  intimacy,  or  use  any  alliance,  connection, 
or  infiuence"  she  "might  i^ossess  with  any  state  or  Government  through 
whose  territory  the  said  canal  may  pass,  for  the  purpose  of  acquiring 
or  holding,  directly  or  indirectly,"  for  her  subjects,  "any  rights  or  ad- 
vantages in  regard  to  commerce  or  navigation  through  the  said  canal 
which  shall  not  be  offered  on  the  same  terms  to  the  "  citizens  of  the 
United  States.  Whether  Great  Britain  retains,  indirectly  or  directly, 
her  inlluence  over  the  Mosquito  territory,  and  whether  she  continues  to 
use  her  "  influence"  in  Central  America  in  a  manner  prohibited  by  the 
treaty,  are  questions  of  fact  for  subseciuent  discussion.  (See  remarks 
at  close  of  this  section,  and  also  iw/ra,  \\2^1  ff.) 

The  following  documents  exphiin  the  jjosition  of  the  executive  de- 
partment of  the  Government  as  to  the  questions  which,  under  the  above 
circumstances,  arose  on  the  construction  of  the  treaty. 

187 


§  150/.]  TREATIES,  [CITAP.  Vl. 

"Ill  my  picvious  dispatch  of  this  day  1  have  informed  your  lordship 
of  my  having  concluded  a  treaty  Mith  Mr.  Clayton  respecting  the  con- 
struction of  a  ship  communication  between  the  two  oceans  of  the  At- 
lantic and  Pacilic,  and  1  have  there  stated  to  your  lordship  that  there 
are  some  slight  dilierences  between  the  original  i)roject  transmitted 
home  on  the  od  of  February  and  the  ti-eaty  now  concluded. 

"  I  have  thought  it  better  to  explain  the  nature  of  these  changes,  and 
my  reasons  for  adopting  them,  in  a  separate  dispatch ;  and  1  shall  do 
so,  rather  according  to  the  manner  and  time  in  which  tliey  were  made 
tlian  according  to  tlie  place  in  the  convention  in  which  they  occur. 

"  The  first,  therefore,  I  shall  refer  to  is  in  Article  VI,  to  wliich  are 
added  tlie  words: 

"'And  should  any  differences  arise  as  to  riglit  or  property  over  the 
territory  through  which  the  said  canal  shall  i>ass  between  the  States  or 
Governments  of  Central  America,  and  such  ditferences  should  in  any  way 
impede  or  obstruct  the  execution  of  the  said  canal,  the  Governments  of 
Great  Britain  and  the  United  States  will  use  their  good  offices  to  settle 
such  ditferences  in  the  manner  best  suited  to  promote  the  interests  of 
the  said  canal,  and  to  strengthen  the  bonds  of  friendship  and  alliance 
which  exist  between  the  contracting  parties.' 

'■This  addition,  in  reconsidering  the  matter,  was  deemed,  both  by  my- 
self and  Mr.  Clayton  an  advantage  to  the  treaty,  and  a  sort  of  guar- 
antee against  future  unfriendly  disputes  between  the  two  Governments 
as  to  the  subject  referred  to. 

"  The  second  addition  agreed  to  is  in  Article  VII,  to  which  has  been 
added : 

"'And  if  any  ])ersons  or  company  should  already  have,  with  any 
State  through  which  the  proposed  ship-canal  may  pass,  a  contract  for 
the  construction  of  such  a  canal  as  that  specified  in  the  convention,  to 
the  stipulations  of  which  contract  neither  of  tbe  contracting  parties  in 
this  convention  have  any  just  cause  to  object,  and  the  said  persons  or 
company  shall,  moreover,  have  made  preparations  and  expended  time, 
money,  and  trouble  on  the  faith  of  such  contract,  it  is  hereby  agreed 
that  such  persons  or  company  shall  have  a  priority  of  claim  over  every 
other  person,  persons,  or  company,  to  the  protection  of  the  Govern- 
ments of  Great  Britain  and  the  United  States,  and  be  allowed  a  year 
from  the  date  of  the  exchange  of  the  ratifications  of  this  convention  for 
concluding  their  arrangements,  and  presenting  evidence  of  sufficient  cap- 
ital subscribed  to  accomplish  the  contemplated  undertaking,  it  being  un- 
derstood that  if,  at  the  expiration  of  the  aforesaid  period,  such  persons 
or  company  be  not  able  to  commence  and  carry  out  the  proposed  enter- 
l)rise,  tben  the  Governments  of  Great  Britain  and  the  United  States 
shall  be  free  to  afford  their  protection  to  any  other  persons  or  company 
that  shall  be  prepared  to  commence  and  proceed  with  the  construction 
of  the  canal  in  question.' 

"  I  should  here  state  to  your  lordship  that  when  the  treaty  was  placed 
under  the  notice  of  the  chairman  of  the  Committee  on  Foreign  Relations 
in  the  Senate,  a  gentleman  of  great  weight,  and  of  the  more  im|)ortance 
since  he  belongs  to  the  dominant  party  in  the  chamber  of  which  he  is  a 
member,  he  considered  that  it  would  only  be  fair  that  the  two  Governments 
should  give  an  open  and  avowed  preference  by  name  to  an  American 
company  which  had  first  conceived  and  taken  steps  to  carry  out  the 
proposed  undertaking.  This  I  objected  to;  but  I  deemed  there  could 
be  no  objection  to  giving  to  any  company,  under  certain  fair  conditions, 
such  as  are  specified,  the  preference  that  was  sought,  although  those 

188 


CHAP.  VI.]  GREAT  BEITAIN:  CLAYTON-BULWER  TREATY,  1850.    [§150/ 

couditious  applied  to  a  compauy  tbat  was  American.  In  this  manner 
a  sort  of  compromise  was  effected. 

"  The  third  alteration  adopted  is  in  Article  VIII,  the  whole  of  which 
article  is  remodeled. 

"This  alteration,  I  must  say,  was  the  effect  of  the  joint  opinion  of 
Mr.  Clayton  and  myself,  both  thinking  that  the  article  as  amended,  was 
better  and  more  clear,  referring  especially  to  two  lines  of  communica- 
tion which  seem  the  most  likely  to  be  adopted,  and  securing  thereby  a 
considerable  support  to  the  convention  in  general,  many  persons  being 
interested  in  the  Panama  and  Tehauntepec  projects. 

"  The  only  other  change  which  it  is  worth  while  remarking  upon 
occurs  tirst  in  the  body  of  the  treaty,  but  was  the  last  mooted  or  adojited. 
Your  lordship  will  iierceive  it  by  casting  your  eye  over  Article  I,  in 
which  a  passage  is  inserted  between  the  words  'Central  America,' 
which  close  the  second  line  in  the  page,  down  to,  'nor  will  Great  Brit- 
ain or  the  United  States  take  advantage  of  any,'  &c.,  which  occurs  in 
the  third  line  from  the  bottom  of  the  said  page,  some  few  words  hav- 
ing been  left  out  to  admit  of  the  aforesaid  passage.*  The  manner  in 
which  this  change  was  effected  was  as  follows: 

"It  struck  me  that  the  declaration  or  note  mentioned  by  your  lord- 
ship bound  our  Government  as  to  its  protection  over  the  Mosquitoes, 
but  did  not  bind  the  United  States  Government  as  to  its  protection 
over  such  other  States,  even  Nicaragua,  as  it  might  hereafter  form  an 
especial  alliance  with.  Moreover,  the  pledge  that  we  would  not  do 
covertly  what  we  had  declared  we  would  not  do  directly  seemed  to  me 
a  pledge  that  it  would  be  more  suitable  and  becoming  that  both  parties 
should  take  than  that  one  alone  should  take. 

"  With  these  views,  instead  of  presenting  the  note,  1  embodied  in  the 
treaty  the  substance  of  the  declaration  given  by  your  lordship  to  Mr. 
Lawrence,  constituting  that  declaration  so  as  to  aiiply  to  any  Govern- 
ment or  people  we  do  or  may  protect,  and  also  to  any  Government  or 
people  that  the  United  States  Government  do  or  may  i)rotect.  Some 
discussion  took  place  on  this  matter,  but  finally  it  was  so  arranged. 

"As  the  case  now  stands  it  is  clearly  understood  that  Her  Majesty's 
Government  holds  by  its  own  opinions  already  expressed  as  to  Mosquito, 
and  that  the  United  States  does  not  depart  from  its  opinion  also  already 
expressed  as  to  the  same  subject  j  but  the  main  question  of  the  canal 
being  settled  on  an  amicable  basis,  and  the  future  relations  of  the  United 
States  and  Great  Britain  being  regulated  in  all  other  parts  of  Central 
America,  the  discussion  of  this  difference,  which  has  lost  its  great  prac- 
tical importance,  is  avoided  in  an  arrangement  meant  to  be  as  much  as 
possible  of  a  perfectly  friendly  character. 

"I  need  not  say  that  should  your  lordship  wish  to  make  any  further 
statement  as  to  the  views  of  Uer  Majesty's  Government  with  respect  to 
the  protectorate  of  Mosquito,  that  statement  can  still  be  made ;  nothing 
in  tlie  present  convention  is  affirmed  thereupon,  but  nothing  is  aban- 
doned. 

"I  trust  that  after  this  statement  your  lordship  will  approve  of  tho 
course  I  have  pursued. 

"There  are  various  small  and  verbal  differences  between  the  original 
project  and  treaty  which  I  have  not  enumerated,  because  they  leave  the 
general  sense  the  same,  and  have  only  been  adopted  to  express  that  sense 
more  clearly.  The  word  'fortify'  is  inserted  between  'occupy  and  colo- 
nize' in  the  second  line  from  tho  bottom  of  the  page  in  Article  I,  but 
this  word  had  been  used  in  your  lordship's  note  to  Mr.  Lawrence,  and 

189 


§  150/]  TREATIES.  [chap.  VI. 

only  iinposos  in  that  place  an  oblifjation  which  had  already  been  agreed 
to  and  stated  elsewhere.  The  word 'blockade' is  inserted  before  the 
words  'detention  or  capture'  in  Article  II,  at  the  lequest  of  several  influ- 
ential persons,  bnt  only  signifies  what  detention  and  capture  had  already 
expressed." 

Sir  H.  L.  IJulwer  lo  Loitl  raliiicrstoii,  Apr.  28,  1850. 

Declaration  madehy  Sir  Henry  Bulwer  at  the  Department  of  State,  June 
2d,  1S~)0,  prior  to  the  exchange  of  the  ratifications  of  the  Clayton-Bul- 
icer  treaty. 

"In  proceeding  to  the  exchange  of  the  ratifications  of  the  convention, 
signed  at  Washington  on  the  19th  of  April,  1850,  between  Her  Britannic 
JMojesty  and  tiie  United  States  of  America,  relative  to  the  establish- 
ment of  a  communication  by  ship-canal  between  the  Atlantic  and  Pacific 
Oceans: 

'•The  undersigned,  Uer  Britannic  Majesty's  i)lenip()tentiary,  has  re- 
ceived Iler  JMnjesty's  instructions  to  declare  that  Her  ^Majesty  does  not 
understand  the  engagements  of  that  convention  to  ai)ply  to  Her  IMajes- 
ty's  settlement  at  Honduras,  or  to  its  dependencies. 

"Her  ]\rajesty's  ratification  of  the  said  convention  is  exchanged  under 
the  explicit  declaration  above  mentioned. 

"Done  at  Washington,  the  29th  day  of  June,  1850. 

"H.  L.  BULWER." 

Memorandum  touching  Sir  Henry  Bulicerh  declaration  filed  by  Mr.  Clay- 
ton in  the  Department  of  State  at  Washington,  July  5, 1850. 

"The  within  declaration  of  Sir  H.  L.  Bulwer  was  received  by  me  on 
the  29th  day  of  June,  1850.  In  reply  I  wrote  him  my  note  of  the  4tli  of 
.July,  acknowledging  that  I  understood  British  Honduras  was  not  em- 
braced in  the  treaty  of  the  19th  day  of  April  last,  but  at  the  same  time 
carefully  declining  to  affirm  or  deny  the  British  title  in  their  settlement 
or  its  alleged  dependencies.  After  signing  my  note  last  night  I  deliv- 
ered it  to  Sir  Henry,  and  we  immediately  proceeded,  without  any  further 
or  other  action,  to  exchange  the  ratifications  of  said  treaty.  The  blank 
in  the  declaration  was  never  filled  up.  The  consent  of  the  Senate  to  the 
declaration  was  not  required,  and  the  treaty  Avas  ratified  as  it  stood 
when  it  was  made. 

"JOHN  M.  CLAYTOK 

"N.  B. — The  rights  of  no  Central  American  State  have  been  compro- 
mised by  the  treaty  or  by  any  part  of  the  negotiations." 

"I  believe  Great  Britain  has  never  defined  the  character  of  her  claim 
to  possess  what  is  called  '  the  Colony  of  the  Bay  Islands.'  It  does  not 
appear  to  be  one  of  her  organized  colonies.  She  has  not,  in  explicit 
language,  claimed  sovereigntj'  over  it,  though  her  acts  have  indicated 
such  a  purpose.  AVhatever  may  have  been  her  rights  or  pretension  to 
rights  over  this  colony,  they  were  all  given  up,  according  to  the  view 
here  taken  of  the  subject,  by  the  Clayton  and  Bulwer  treaty.    *     *    ♦ 

"  It  is  i)resumed  that  the  only  part  of  that  colony  to  which  England 
will  be  disposed  to  attach  much  value,  or  have  any  inducement  to  re- 
tain, is  the  island  of  TJuatan.    From  an  intimation  made  to  jne  it  may 

J90 


CHAP.  VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.    [§150/. 

be  that  she  will  take  the  position  that  this  island  does  not  belong  to 
auy  of  the  Central  American  States,  but  is  to  be  regarded  in  the  same 
condition  as  one  of  the  West  India  Islands.  By  reference  to  the  treaties 
between  Great  Britain  and  Spain,  you  will  find  this  island  clearly  recog- 
nized as  a  Si)anish  possession  and  a  i^art  of  the  old  viceroyalty  of  Gua- 
temala." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Buchauan,  Sept.  12, 1853.     MSS.  Inst.,  Gr.  Brit. 

"  In  relation  to  the  Clayton  and  Bulwer  treaty,  about  which  so  much 
is  said  in  your  dispatches,  I  have  only  to  remark  that  this  Government 
considers  it  a  subsisting  contract,  and  feels  bound  to  observe  its  stipu- 
lations so  far  as  by  fair  construction  thej'  impose  obligations  upon  it. 

"  If  Great  Britain  has  failed,  or  shall  fail,  on  her  part  to  fulfill  the  obli- 
gations she  has  therein  assumed,  or  if  she  attempts  to  evade  them  by  a 
misconstruction  of  that  instrument,  the  discussions  that  may  arise  on 
these  subjects  must  necessarily  take  place  between  the  parties  to  it. 
The  views  taken  of  that  treaty  by  the  United  States,  and  your  course 
in  relation  to  it,  pointed  out  in  your  first  instructions,  will  be  observed 
until  you  receive  notice  of  their  modification.  In  these  instructions  you 
were  furnished  with  the  views  of  one  of  the  contracting  parties  (Great 
Britain),  but  at  the  same  time  you  were  informed  that  the  United  States 
did  not  concur  in  them.  In  the  negotiations  at  London,  in  regard  to  the 
affairs  of  Central  America,  the  meaning  of  that  instrument  will  come 
directly  under  discussion.  So  far  as  respects  your  mission,  you  will  re- 
gard it  as  meaning  that  the  American  negotiator  intended  when  he 
entered  into  it,  and  what  the  Senate  must  have  understood  it  to  mean 
when  it  was  ratified,  viz,  that  by  it  Great  Britain  came  under  engage- 
ments to  the  United  States  to  recede  from  her  asserted  protectorate  of 
the  Mosquito  Indians,  and  to  cease  to  exercise  dominion  or  control  in 
any  part  of  Central  America.  If  she  had  auy  colonial  possessions 
therein  at  the  date  of  the  treaty,  she  was  bound  to  abandon  them,  and 
equally  bound  to  abstain  from  colonial  acquisitions  in  that  region.  In 
your  otficial  intercourse  with  the  States  of  Central  America,  you  will 
present  this  construction  of  the  treaty  as  the  one  given  to  it  by  your 
Government. 

"  It  is  believed  that  Great  Britain  has  a  qualified  right  over  a  tract  of 
country  called  the  Belize,  from  which  she  is  not  ousted  by  this  treaty, 
because  no  part  of  that  tract,  when  restricted  to  its  proper  limits,  is 
within  the  boundaries  of  Central  America." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Borland,  Dec.  30,  1853.     MSS.  Inst.,  Am.  St. 

Statement  of  Mr.  Buchanan  for  Lord  Clarendon. 

"  Legation  of  the  United  States, 

"  London,  January  G,  1851. 
"  Mr.  l\Ionroc,  one  of  our  wisest  and  most  discreet  Presidents,  an- 
nounced in  a  public  message  to  Congress  in  December,  1823,  that  'th(> 

191 


§  IfiO/!]  TREATIES.  [CIIAP.  VI. 

Americnu  coutinents,  by  ibe  free  aud  indepeudeut  eouditiou  which  they 
have  assumed  aud  maiutaiued,  are  henceforth  not  to  be  considered  sub- 
jects for  futnre  colonization  by  any  European  powers.'  This  dechna- 
tiou  has  since  been  known  throughout  the  world  as  the  'Monroe  doc- 
trine,* and  lias  received  the  jniblic  aud  oliicial  sanction  of  subsequent 
Presidents,  as  well  as  of  a  large  majority  of  the  American  people. 
"Whilst  this  doctrine  will  be  maintained  whenever,  in  the  o]»inion  of 
Congress,  the  peace  and  safety  of  the  United  States  shall  render  this 
necessary,  yet  to  have  acted  upon  it  in  Central  America  might  have 
brought  us  into  collision  with  Great  Britain,  an  event  iihvays  to  be 
deprecated,  aud,  if  ]>ossible.  avoided.  We  can  do  each  other  the  most 
good  and  the  most  harm,  of  any  two  nations  in  the  world,  and  there- 
fore it  is  our  strong  mutual  interest,  as  it  ought  to  be  our  strong  mutual 
desire,  to  remain  the  best  friends.  To  settle  these  dangerous  questions, 
both  parties  wisely  resorted  to  friendh'  negotiations,  which  resulted  in 
the  convention  of  April,  ISoO.  May  this  prove  to  be  instrumeutal  iu 
finally  adjusting  all  questions  of  difficulty  between  the  parties  in  Cen- 
tral America,  and  in  perpetuating  their  i)eace  and  friendship. 

'•  Surely  the  Mosquito  Indians  ought  not  to  prove  an  obstacle  to  so 
happy  a  consummation.'" 

Staiement  of  Lord  Claremlon  for  Mr.  Buchanan. 

"  FoKEiGX  Office,  May  2, 1S54. 

'•  It  was  never  iu  the  contemplation  of  Her  Majesty's  Government,  nor 
iu  that  of  the  Government  of  tbe  United  States,  that  the  treaty  of  iSoO 
should  interfere  in  any  way  with  Her  Majesty's  settlement  at  Belize  or 
its  dependencies.  It  was  not  necessary  that  this  should  have  been  par- 
ticularly stated,  inasmuch  as  it  is  generally  considered  that  the  term 
'  Central  America ' — a  term  of  modern  invention — could  only  appropri- 
ately apply  to  those  States  at  one  time  united  under  the  name  of  the 
'  Central  American  Eepublicy  and  now  existing  as  five  separate  Repub- 
lics ;  but.  in  order  that  there  should  be  no  j^ossible  misconception  at  any 
future  period  relative  to  this  point,  the  two  negotiators  at  the  time  of 
ratifying  the  treaty  exchanged  declarations  to  the  effect  that  neither  of 
the  Governments  they  represented  had  meant  iu  such  treaty  to  com- 
l)rehend  the  settlement  aud  dependencies  iu  question. 

'•  Mr.  Clayton's  declaration  to  Her  Majesty's  Government  on  this  sub- 
ject was  ample  aud  satisfactory,  as  the  following  extract  from  his  note 
of  July  4.  1S50,  will  show : 

•'  •  The  language  of  the  first  article  of  the  convention  concluded  on  the 
10th  day  of  April  last  between  the  United  States  and  Great  Britaiu, 
describing  the  country  not  to  be  occupied,  &c.,  by  either  of  the  parties, 
was,  as  you  know,  twice  approved  by  the  Government,  and  it  was 
neither  understood  by  them  nor  by  either  of  us  (the  negotiators),  to 
include  the  British  settlement  in  Honduras  (commonly  called  British 
Honduras,  as  distinct  from  the  State  of  Honduras),  nor  the  small  islands 
in  the  neighborhood  of  that  settlement  which  may  be  known  as  its  de- 
pendencies. 

'•  'To  this  settlement  and  these  islands  the  treaty  we  negotiated  was 
not  intended  by  either  of  us  to  apply.  The  title  to  them  it  is  now  and 
has  been  my  intention  throughout  the  whole  negotiation  to  leave  as  the 
treaty  leaves  it,  without  denying  or  affirming  or  in  any  way  meddling 
with  the  same,  just  as  it  stood  previously. 

102 


CnAP.YI.]  GKEAT  BEITAIN:  CLAYTON-BUL WEE  TREATY,  1850.  [§150/ 

'*  •  The  chairman  of  the  Committee  on  Foreign  Eelations  of  the  Senate, 
the  Hon.  VT.  E.  King,  informs  me  that  the  Senate  perfectly  understood 
that  the  treaty  did  not  include  British  Honduras.' 

'•Such  having  been  the  mutual  understanding  as  to  the  exception  of 
the  settlement  of  Belize  and  its  dependencies  from  the  operation  of  the 
treaty,  the  only  question  relative  to  this  settlement  and  its  dependen- 
cies in  reference  to  the  treaty  that  can  now  a^i^e  is  as  to  what  is  the 
settlement  of  Belize  and  its  dependencies,  or,  in  other  words,  as  to  what 
is  British  Honduras  and  its  dependencies. 

'•  Her  Majesty's  Government  certainly  understood  that  the  settlement 
of  Belize,  as  here  alluded  to,  is  the  settlement  of  Belize  as  established 
in  1850,  and  it  is  more  warranted  iu  this  conclusion  from  the  fact  that 
the  United  States  had,  in  1847,  sent  a  consul  to  this  settlement,  which 
consul  had  received  his  exequatur  from  the  British  Government,  a  cir- 
cumstance which  constitutes  a  recognition  by  the  United  States  Gov- 
ernment of  the  settlement  of  British  Honduras  under  Her  Majesty  as 
it  then  existed. 

•'  Her  Majesty's  Government  at  once  states  this,  because  it  i)erceives 
that  Mr.  Buchanan  restricts  the  said  settlement  within  the  boundaries 
to  which  it  was  confined  by  the  treaty  of  1786,  whilst  Her  Majesty's 
Government  not  only  has  to  repeat  that  the  treaties  with  old  Spain 
cannot  be  held,  as  a  matter  of  course,  to  be  binding  with  respect  to  all 
the  various  detached  ijortions  of  the  old  Spanish-American  monarchy, 
but  it  has  also  to  observe  that  the  treaty  of  1786  was  put  an  end  to  by 
a  subsequent  state  of  war  between  Great  Britain  and  Spain  :  that  dur- 
ing that  war  the  boundaries  of  the  British  settlement  in  question  were 
enlarged :  and  that  when  peace  was  re  established  between  Great  Brit- 
ain and  Spain  no  treaty  of  a  j^olitical  nature,  or  relating  to  territorial 
limits,  revived  those  treaties  between  Great  Britain  and  Spain  which 
had  previously  existed. 

''  Her  Majesty's  Government,  in  stating  this  fact,  declares  distinctly, 
at  the  same  time,  that  it  has  no  projects  of  political  ambition  or  aggran- 
dizement with  respect  to  the  settlement  referred  to,  and  that  it  will  be 
its  object  to  come  to  some  promj^t,  fair,  and  amicable  arrangement  with. 
the  states  in  the  vicinity  of  British  Honduras  for  regulating  the  limits 
which  should  be  given  to  it,  and  which  shall  not  henceforth  be  extended 
beyond  the  boundaries  now  assigned  to  them." 

Bemarls  hy  Mr.  Buchanan  in  reply  to  Lord  Clarendon^s  statement  of  May  2. 

"  Legation  of  the  United  States, 

•■  London,  July  22,  1854. 

"In  regard  to  Belize  proper,  confined  within  its  legitimate  boundaries, 
under  the  treaties  of  1783  and  1786,  and  limited  to  the  usufruct  speci- 
fied iu  these  treaties,  it  is  necessary  to  say  but  a  few  words.  The  Gov- 
ernment of  the  United  States  will  not,  for  the  luesent.  insist  upon  the 
withdrawal  of  Great  Britain  from  this  settlement,  provided  all  the  other 
questions  between  the  two  Governments  concerning  Central  America 
can  be  amicably  adjusted.  It  has  been  influenced  to  pursue  this  course 
partly  by  the  declaration  of  Mr.  Clayton,  of  the  4th  of  July,  1850,  but 
mainly  in  consequence  of  the  extension  of  the  license  granted  by  Mexico 
to  Great  Britain  under  the  treaty  of  1820,  which  that  Eepublic  has  yet 
taken  no  steps  to  terminate. 

"  It  is,  however,  distinctly  to  be  understood  that  the  Government  of 
the  United  States  acknowledge  no  claim  of  Great  Britain  within  Belize 

S.  Mis.  162— VOL.  II 1:}  193 


§  150/]  TREATIES.  [chap.  VI. 

exc^ejtt  the  tt*ni]>orary  '  liberty  of  inakiiijj  use  of  tlie  wood  of  the  difl'er- 
ent  kinds,  the  fruits,  and  other  i)r()duce  in  their  natural  state,'  fully 
reco^niziufx  that  the  former  '  Si)anish  sovert'iynty  over  the  eoiintry' 
belonjjs  eitlier  to  Guatemala  or  to  Mexico. 

"  In  conclusion,  the  Government  of  the  United  States  most  cordially 
and  earnestly  unites  in  the  desire  expressed  by  'Her  Majesty's  Govern- 
ment, not  only  to  maintain  the  convention  of  1850  intact,  but  to  con- 
solidate and  strenjrthen  it  by  strcnjithcninjif  and  consolidating-  the 
friendly  relations  w  hich  it  was  calculated  to  cement  and  i)eri)etuate.' 
Under  tluvsc  mutual  fcelinjis  it  is  (UH'i)ly  to  be  regretted  that  the  two 
Governments  entertain  ojtinions  so  wiclely  differeut  iu  regard  to  its  true 
efiect  and  meaning."' 

"  Whilst  it  is  greatly  to  the  interest,  as  I  am  convinced  it  is  the  sin- 
cere desire,  of  the  Governments  and  people  of  the  two  countries  to  be 
on  terms  of  intimate  friendship  with  each  other,  it  has  been  our  mis- 
fortuue  almost  always  to  have  had  some  irritating,  if  not  dangerous, 
outstanding  question  with  Great  Britain. 

"  Since  the  origin  of  the  Government  we  have  been  em])loyed  in  nego- 
tiating treaties  with  that  power,  and  afterwards  in  discussing  their 
true  intent  and  meaning.  In  this  respect,  the  convention  of  April 
19,  1S50,  commonly  called  the  Clayton  and  Bulwer  treaty,  has  been 
the  most  unfortunate  of  all ;  because  the  two  Governments  place  di- 
rectly opposite  and  contradictory  instructions  upon  its  first  and  most 
important  article.  Whilst,  iu  the  United  States,  we  believed  that 
this  treaty  would  place  both  powers  upon  an  exact  equality  by  the 
stipulation  that  neither  will  ever  'occupy,  or  fortify,  or  colonize,  or  as- 
sume, or  exercise  any  dominion'  over,  auy  part  of  Central  America,  it 
is  contended  by  the  British  Government  that  the  true  construction  of 
this  language  has  left  them  in  the  rightful  possession  of  all  that  por- 
tion of  Central  America  which  was  in  their  occupancy  at  the  date  of 
the  treaty ;  in  fact,  that  the  treaty  is  a  virtual  recognition  on  the  part 
of  the  United  States  of  the  right  of  Great  Britain,  either  as  owner  or 
protector,  to  the  whole  extensive  coast  of  Central  America,  sweeping 
round  from  the  Eio  Hondo  to  the  port  and  harbor  of  San  Juan  de  Nic- 
aragua, together  with  the  adjacent  Bay  Islands,  except  the  comi)ara- 
tively  small  portion  of  this  between  the  Sarstoon  and  Cape  Honduras. 
According  to  their  construction,  the  treaty  does  no  more  than  simply 
prohibit  them  from  extending  their  possessions  in  Central  America  be- 
youd  the  ])reseut  limits.  It  is  not  too  much  to  assert,  that  if  in  the 
United  States  the  treaty  had  been  considered  susceptible  of  such  a  con- 
struction, it  never  would  have  been  negotiated  under  the  authority  of 
the  President,  nor  would  it  have  received  the  approbation  of  the  Sen- 
ate. The  universal  conviction  in  the  United  States  was,  that  when 
our  Government  consented  to  violate  its  traditional  and  time  honored 
policy,  and  to  stijuilate  with  a  foreign  Government  never  to  occupy  or 
acquire  territory  iu  the  Central  American  portion  of  our  own  conti- 
nent, the  consideration  for  this  sacrifice  was  that  Great  Britain  should, 
194 


CHAP.  VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.  [§150/ 

iu  this  respect  at  least,  be  placed  in  the  same  position  with  ourselves. 
Whilst  we  have  no  right  to  doubt  the  sincerity  of  the  British  Govern- 
ment iu  their  construction  of  the  treaty,  it  is  at  the  same  time  my  de- 
liberate conviction  that  this  construction  is  in  opposition  both  to  its 
letter  and  its  spirit. 

"  Under  the  late  Administration  negotiations  were  instituted  between 
the  two  Governments  for  the  purpose,  if  possible,  of  removing  these 
difficulties ;  and  a  treaty  having  this  laudable  object  in  view  was  signed 
at  London  on  the  17th  October,  1856,  and  was  submitted  by  the  Presi- 
dent to  the  Senate  on  the  following  10th  of  December.  Whether  this 
treaty,  either  in  its  original  or  amended  form,  would  have  accomplished 
the  object  intended  without  giving  birth  to  new  and  embarrassing  com- 
plications between  the  two  Governments,  may  perhaps  be  well  ques- 
tioned. Certain  it  is,  however,  it  was  rendered  much  less  objectionable 
by  the  different  amendments  made  to  it  by  the  Senate.  The  treaty,  as 
amended,  was  ratified  by  me  on  the  12th  March,  1857,  and  was  trans- 
mitted to  London  for  ratification  by  the  British  Government.  That 
Government  expressed  its  willingness  to  concur  in  all  the  amendments 
made  by  the  Senate  with  the  single  exception  of  the  clause  relating  to 
Ruatan  and  the  other  islands  in  the  Bay  of  Honduras.  The  article  iu 
the  original  treat}',  as  submitted  to  the  Senate,  after  reciting  that  these 
islands  and  their  inhabitants 'having  been,  by  a  convention  bearing 
date  the  27th  day  of  August,  1856,  between  her  Britannic  Majesty  and 
the  Republic  of  Honduras,  constituted  and  declared  a  free  territory 
under  the  sovereignty  of  the  said  Republic  of  Honduras,'  stipulated 
that  '  the  two  contracting  parties  do  hereby  mutually  engage  to  recog- 
nize and  respect  iu  all  future  times  the  independence  and  rights  of  the 
said  free  territory  as  a  part  of  the  Republic  of  Honduras.' 

"Upon  an  examination  of  this  convention  between  Great  Britain  and 
Honduras  of  the  27th  August,  1856,  it  was  found  that,  whilst  declar- 
ing the  Bay  Islands  to  be  '  a  free  territory  under  the  sovereignty  of  the 
Republic  of  Honduras,'  it  deprived  that  Republic  of  rights  without  which 
its  sovereignty  over  them  could  scarcely  be  said  to  exist.  It  divided 
them  from  the  remainder  of  Honduras,  and  gave  to  their  inhabitants  a 
separate  Government  of  their  own,  with  legislative,  executive,  and  judi- 
cial officers,  elected  by  themselves.  It  deprived  the  Government  of 
Honduras  of  the  taxing  power  in  every  form,  and  exempted  the  people 
of  the  islands  from  the  performance  of  military  duty,  except  for  their 
own  exclusive  defense.  It  also  prohibited  that  Republic  from  erecting 
fortifications  upon  them  for  their  protection — thus  leaving  them  open 
to  invasion  from  any  quarter ;  and,  finally,  it  provided  *  that  slavery 
shall  not  at  any  time  hereafter  be  permitted  to  exist  therein.' 

"  Had  Honduras  ratified  this  convention,  she  would  have  ratified  the 
establishment  of  a  state  substantially  independent  within  her  own 
limits,  and  a  state  at  all  times  subject  to  British  influence  and  control. 
Moreover,  had  the  United  States  ratified  the  treaty  with  Great  Britain 

105 


§  150/]  TREATIES.  [chap.  VL 

iu  its  original  Ibriu,  we  sboiild  have  beeu  bound  'to  recognize  and  re- 
spect in  all  future  time'  these  stipulations  to  the  prejudice  of  Honduras. 
Being  in  direct  oi)i>o.siti(>n  to  the  si)irit  and  meaning  of  the  Clayton  and 
Uulwer  treaty  as  understood  in  the  United  States,  the  Senate  rtyected 
the  entire  clause,  and  substituted  in  its  stead  a  simple  recognition  of 
the  sovereign  right  of  TTondnras  to  these  islands  in  the  following  lan- 
guage:  'The  two  contracting  j);irties  do  heieby  mutually  engage  to 
recognize  and  respect  the  islands  of  Euatan,  Bonaco,  Utila,  Barbaretta, 
Helena,  and  Morat,  situate  in  the  Bay  of  Honduras,  and  off  the  coast 
of  the  Republic  of  Honduras,  as  under  the  sovereignty  and  as  part  of 
the  said  Republic  of  Honduras.' 

"Great  Britain  rejected  this  amendment,  assigning  as  the  only  reason 
that  the  ratitications  of  the  convention  of  the  27th  August,  185G,  be- 
tween her  and  Honduras,  liad  not  been  'exchanged,  owing  to  the  hesi- 
tation of  that  Government.'  Had  this  been  done,  it  is  stated  that  'Her 
Majesty's  Government  would  have  had  little  -difiticulty  in  agreeing  to 
the  nioditicatiou  proposed  by  the  Senate,  which  then  would  have  had 
in  effect  the  same  signification  as  the  original  wording.'  Whether  this 
would  have  been  the  effect — whether  the  mere  circumstance  of  the  ex- 
change of  the  ratifications  of  the  British  convention  with  Honduras 
prior  in  point  of  time  to  the  ratification  of  our  treaty  with  Great  Brit- 
ain would,  '  in  effect,'  have  had  '  the  same  signification  as  the  original 
wording,'  and  thus  have  nullified  the  amendment  of  the  Senate,  may 
well  be  doubted.  It  is,  perhaps,  fortunate  that  the  question  has  never 
arisen. 

"  The  British  Government,  immediately  after  rejecting  the  treaty  as 
amended,  proposed  to  enter  into  a  new  treaty  with  the  United  States, 
similar  in  all  respects  to  the  treaty  which  they  had  just  refused  to 
ratify,  if  the  United  States  would  consent  to  add  to  the  Senate's  clear 
and  unqualified  recognition  of  the  sovereignty  of  Honduras  over  the 
Bay  Islands  the  following  conditional  stipulation  :  '  Whenever  and  so 
soon  as  the  Republic  of  Honduras  shall  have  concluded  and  ratified  a 
treaty  with  Great  Britain,  by  which  Great  Britain  shall  have  ceded,  and 
the  Republic  of  Honduras  shall  have  accepted,  the  said  islands,  subject 
to  the  provisions  and  conditions  contained  in  such  treaty.' 

This  i^roposition  was,  of  course,  rejected.  After  the  Senate  had  re- 
fused to  recognize  the  British  convention  with  Honduras  of  the  27th 
August,  185G,  with  full  knowledge  of  its  contents,  it  was  impossible  for 
me,  necessarily  ignorant  of  'the  provisions  and  conditions'  which 
might  be  contained  in  a  future  convention  between  the  same  parties, 
to  sanction  them  in  advance. 

"  The  fact  is,  that  when  two  nations  like  Great  Britain  and  the  United 
States,  mutually  desirous  as  they  are,  and  I  trust  ever  may  be,  of  main- 
taining the  most  friendly  relations  with  each  other,  have  unfortunately 
concluded  a  treaty  which  they  understand  in  senses  directly  opposite, 
the  wisest  course  is  to  abrogate  such  a  treaty  by  mutual  consent,  and 

190 


CHAP.  VI.]   GREAT  BRITAIN:  CLAYTOX-BULWER  TREATY,  1850.   [§150/! 

to  commence  anew.  Had  this  been  done  promptly,  all  difficulties  in 
Central  America  would  most  probably  ere  this  liave  been  adjusted  to 
the  satisfaction  of  both  parties.  The  time  spent  in  discussing  the  mean- 
ing of  the  Clayton  and  Bulwer  treaty  would  have  been  devoted  to  this 
praiseworthy  purpose,  and  the  task  would  have  been  the  more  easily 
accomplished,  because  the  interest  of  the  two  countries  in  Central  Amer- 
ica is  identical,  being  confined  to  securing  safe  transits  over  all  the 
routes  across  the  Isthmus." 

President  Buchanan,  First  Annual  Message,  1857. 

"  The  President  has  always  regretted  the  differences  between  the 
United  States  and  Great  Britain,  which  have  grown  out  of  their  differ- 
ent constructions  of  the  'Clayton-Bulwer  treaty,'  and  has  been  sincerely 
desirous  to  see  them  amicably  arranged. 

"  In  proof  of  this  friendly  disposition,  he  gave  his  sanction  to  the  Dal- 
las-Clarendon treaty  of  1856,  as  amended  by  the  Senate,  notwithstand- 
ing the  objections  which  your  lordship  is  aware  he  entertained  to  some 
of  its  provisions.  When  this  treaty  had  failed  in  consequence  of  the 
refusal  of  Great  Britain  to  ratify  It  in  its  amended  form,  he  was  confi- 
dentially informed  by  your  lordship,  on  the  19th  of  October  last,  in  an 
interview  which  you  had  sought  for  the  purpose,  '  that  Her  Majesty's 
Government  had  considered  the  several  alternatives  of  action  which 
were  open  to  their  selection,  and,  in  a  review  of  the  whole  case,  had  re- 
solved to  dispatch  a  representative  of  authority  and  experience  to  Cen- 
tral America,  charged  to  make  a  definite  settlement  of  all  the  matters 
with  regard  to  which  the  United  States  and  England  are  still  at  vari- 
ance.' Your  lordship  added  that  Sir  William  Gore  Ouseley  had  been 
selected  as  the  representative,  and  that  while  you  were  unable  to  ex- 
plain the  precise  character  of  his  instruction,  you  '  believed  it  was  the 
intention  of  Her  Majesty's  Government  to  carry  the  Clayton-Bulwer 
treaty  into  execution  according  to  the  general  tenor  of  the  interpreta- 
tion put  upon  it  by  the  United  States,  but  to  do  so  by  separate  negotia- 
tions with  the  Central  American  Eepublics  in  lieu  of  a  direct  negotiation 
with  the  Federal  Government.'    *     *     * 

"  Should  Sir  William  Ouseley's  mission  be  successful  in  giving  effect 
to  the  Clayton-Bulwer  treaty  according  to  the  American  construction 
of  it,  it  will  be  unnecessary,  of  course,  for  either  the  United  States  or 
Great  Britain  to  consider  the  question  of  its  abrogation;  liad  this  abro- 
gation been  promptly  made  as  soon  as  it  was  discovered  that  the  treaty 
was  understood  by  the  parties  to  it  in  senses  directly  opposite,  it  is 
quite  possible  that  the  Central  American  questions  might  have  been 
adjusted  ere  this  to  the  satisfaction  of  both  Governments,  and  if  the 
abrogation  could  be  accomplished  now  by  substituting  a  new  adjust- 
ment of  these  questions  for  that  which  has  led  to  so  much  discussion 
in  the  convention  of  1850,  this  might  be  a  fortunate  termination  of 
the  whole  controversy.     But  after  eight  years  of  fruitless  negotiation, 

197 


§  150/]  TREATIES.  [cnAr.  VI. 

to  abandou  the  treaty,  without  auy  arraugeuieiit  whatever  of  the  diffi- 
culties out  of  which  it  grew,  would  be  almost  to  abandon  at  the  same 
time  all  hope  of  adjusting  these  difficulties  in  a  peaceful  manner. 

"  In  a  recent  conversation  with  your  lordship  on  tliis  subject  I  under- 
stood you  to  say  that  while  Great  Britain  might  possibly  consent  to 
dissolve  the  treaty,  it  would,  in  your  belief,  expect  the  dissolution  to 
be  accompanied  by  some  stipulations  which  Her  I\Iajesty's  Government 
desire  to  have,  in  respect  to  the  transit  routes  across  the  istlimus,  but 
that  it  had  no  intention  in  that  event  of  relinquishing  any  of  the  pos- 
sessions which  it  now  has  in  Central  America.  With  this  understand- 
ing of  your  suggestion  I  replied  that,  in  my  judgment,  the  President 
would  never  consent,  while  Great  Britain  continued  to  maintain  her 
Central  American  possessions,  to  make  new  concessions  to  her  interests 
in  that  quarter,  but  would  prefer  rather  that  the  dissolution  of  the  treaty 
should  be  naked  and  unconditional.  From  your  lordship's  '  confiden- 
tial' note  to  Lord  Malmesbury  of  the  22d  ultimo,  I  now  learn  that  in 
advising  certain  new  stipulations  to  accompany  the  repeal  of  the  treaty 
of  1850,  should  such  a  repeal  be  determined  on,  you  had  'never  designed 
to  represent  those  suggestions  as  official  or  unalterable,  or  to  intimate 
that  Her  Majesty's  Government  would  not  listen  to  any  amicable  pro- 
posal for  the  simple  revocation  of  the  treaty  alluded  to.' 

"  I  understand  your  lordship,  however,  to  remain  firmly  of  opinion 
that  if  the  treaty  should  be  dissolved.  Her  Majesty's  Government  would 
relinquish  none  of  its  pretensions  in  Central  America,  and  that  the  Bay 
Islands  especially '  would  remain  attached  to  the  British  Crown.'  Since 
it  is  well  known  that  the  views  of  this  Government  are  wholly  incon- 
sistent with  these  pretensions,  and  that  it  can  never  willingly  therefore 
acquiesce  in  their  maintenance  by  Great  Britain,  your  lordship  will 
readily  perceive  what  serious  consequences  might  follow  a  dissolution 
of  tlie  treaty  if  no  provision  should  be  made  at  the  same  time  for  adjust- 
ing the  questions  which  led  to  it. 

"If,  therefore,  the  President  does  not  hasten  to  consider  now  the  al- 
ternative of  repealing  the  treaty  of  1850  it  is  because  he  does  not  wish 
l^rematurel}'  to  anticipate  the  failure  of  Sir  William  Ouseley's  mission, 
and  is  disposed  to  give  a  new  i)roof  to  Her  Majesty's  Government  of  his 
sincere  desire  to  preserve  the  amicable  relations  which  now  happily  sub- 
sist between  the  two  countries." 

Mr.  Cass,  Sec.  of  State,  to  Lord  Napier,  Apr.  G,  1858.     MSS.  Notes,  Gr.  Brit. 

"  I  have  had  the  honor  to  receive  the  copj'  which  your  lordship  did 
me  the  favor  to  send  me  of  Lord  Malmesbury's  dispatch  to  your  lord- 
ship of  August  18,  in  reference  to  Sir  William  Ouseley's  mission,  and 
have  submitted  it  to  the  consideration  of  the  President.  From  the 
statement  of  Lord  Malmesbury  that  the  British  Government  has  no 
remaining  alternative  but  that  of  leaving  the  Cabinet  of  Washington 
to  originate  any  further  overtures  for  an  adjustment  of  these  contro- 
198 


CllAr.  VI.J    GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1S50.   [§150/ 

versies,  it  is  quite  obvious  that  the  positiou  of  the  President  on  this 
subject  is  not  correctly  understood  by  Her  Majesty's  Government. 
Since  the  announcement  by  your  lordship  in  October,  1857,  of  Sir 
William  Ouseley's  special  mission,  the  President  has  awaited  not  so 
much  any  new  proposition  for  the  adjustment  of  the  Central  American 
question  as  the  statement  in  detail  which  he  had  been  led  to  expect  of 
the  method  by  which  Sir  William  Ouseley  was  to  carry  into  efiect  the 
previous  proposition  of  the  British  Government.  To  make  this  plain, 
your  lordship  will  pardon  me  for  making  a  brief  reference  to  what  has 
occurred  between  the  two  Governments  in  respect  to  Central  America 
since  the  ratification  of  the  Clayton-Bulwer  treaty  of  1850. 

"AYhile  the  declared  object  of  that  convention  had  reference  to  the 
construction  of  a  ship-canal,  by  the  way  of  San  Juan  and  the  lakes  of 
Nicaragua  and  Managua,  from  the  Atlantic  to  the  Pacific  oceans,  yet  it 
avowed  none  the  less  plainly  a  general  principle  in  reference  to  all 
practicable  communications  across  the  Isthmus,  and  laid  down  a  dis- 
tinct policy  by  which  the  practical  operation  of  this  principle  was  likely 
to  be  kept  free  from  all  embarrassment.  The  principle  was  that  the 
interoceanic  routes  should  remain  under  the  sovereignty  of  the  states 
through  which  they  ran,  and  be  neutral  and  free  to  all  nations  alike. 
The  policy  was,  that  in  order  to  prevent  any  Government  outside  of 
those  states  from  obtaining  undue  control  or  influence  over  these  inter- 
oceanic transits,  no  such  nation  should  '  erect  or  maintain  any  fortifica- 
tions commanding  the  same,  or  in  vicinity  thereof,  or  should  occupy  or 
fortify  or  colonize  or  assume  or  exercise  any  dominion  over  Nicaragua, 
Costa  Rica,  the  Mosquito  coast,  or  any  part  of  Central  America.' 

"  So  far  as  the  United  States  and  Great  Britain  were  concerned,  these 
stipulations  were  expressed  in  unmistakable  terms,  and  in  reference  to 
other  nations  it  was  declared  that  the  contracting  parties  in  this  con- 
vention engage  to  invite  every  state  with  which  both  or  either  have 
friendly  intercourse  to  enter  into  stipulations  with  them  similar  to  those 
which  they  have  entered  into  with  each  other.  At  that  time  the  United 
States  had  no  possessions  whatever  in  Central  America  and  exercised 
no  dominion  there.  In  respect  to  this  Government,  therefore,  the  pro- 
visions of  the  first  article  of  the  treaty  could  operate  on]j  as  a  restric- 
tion for  the  future,  but  Great  Britain  was  in  the  actual  exercise  of  do- 
minion over  nearly  the  whole  eastern  coast  of  that  country,  and  in  rela- 
tion to  her  this  article  had  a  present  as  well  as  a  i^rospective  operation. 
She  was  to  abandon  the  occupancy  which  she  already  had  in  Central 
America,  and  was  neither  to  make  acquisitions  or  erect  fortifications  or 
exercise  dominion  there  in  the  future.  In  other  words,  she  was  to  place 
herself  in  the  same  position,  with  respect  to  possessions  and  dominion 
in  Central  America,  which  was  to  be  occui)ied  by  the  United  States,  and 
which  both  the  contracting  i)arties  to  the  treaty  engaged  that  they 
would  endeavor  to  induce  other  nations  to  occui)y.  This  was  the  treaty 
as  it  was  understood  and  assented  to  by  the  United  States,  and  this  is 

190 


§150/]  TREATIES.  [('IIAI'.  VI. 

tbo  treaty  as  it  is  still  iiiidorstood  by  this  Uo\ erniiKiil.  instead,  how- 
ever, of  giving  effect  to  it  in  this  sense,  the  British  Government  i)ro- 
ceeded,  in  1851,  only  a  few  months  after  the  signatnre  to  the  treaty,  to 
establish  a  new  British  colony  in  Central  America  nnder  the  name  of  the 
'Bay  I.slands,' and  when  this  Government  expressed  its  great  snrpriso 
at  this  proceeding  and  at  the  lailure  of  Great  Britain  to  comply  with 
the  terms  of  the  convention.  Her  Majesty's  Government  replied  that  the 
islands  already  belonged  to  Great  Britain  at  the  date  of  the  treaty,  and 
that  the  convention,  in  their  view  of  it,  interfered  with  none  of  their 
existing  i)08sessions  in  Central  America,  but  was  wholly  prospective  in 
its  character,  and  only  prevented  them  from  mauing  new  acquisitions. 
It  is  unnecessary  to  do  more  than  simply  refer  to  the  earnest  and  able 
discussions  which  followed  this  avowal,  and  which  show  more  and  more 
idainly  the  opposite  constructions  which  were  placed  npon  the  treaty 
by  the  two  Governments. 

"  In  1854  it  was  sought  to  reconcile  these  constructions  and  to  termi- 
nate the  Central  American  question  by  the  convention  which  was  signed 
at  London  b}^  the  American  minister  and  Lord  Clarendon,  usually  des- 
ignated the  Dallas-Clarendon  treaty.  The  terms  of  this  treaty  are 
doubtless  fiimiliar  to  your  lordshii>. 

"  It  provides — 

*'l.  For  the  withdrawal  of  the  British  protectorate  over  the  Mosquito 
Indians  and  for  an  arrangement  in  their  behalf  upon  principles  which 
were  quite  acceptable  to  the  Uuited  States. 

"2.  It  regulated  the  boundaries  of  the  Belize  settlements,  within 
which  Great  Britain  claimed  to  exercise  certain  possessory  rights  upon 
terms  which,  although  not  wholly  acceptable  to  this  Government,  were 
yet  in  a  spirit  of  generous  concession  ratified  by  the  United  States 
Senate. 

"3.  It  provided  for  a  cession  of  the  Bay  Islands  to  Honduras  (in  the 
opinion  of  this  Government  their  rightful  proprietor),  but  this  conces- 
sion was  made  dependent  upon,  an  unratified  treaty  between  Great 
Britain  and  Honduras,  whose  terms  were  not  officially  known  to  this 
Government,  but  which,  so  far  as  they  had  unofficially  appeared,  were 
not  of  a  satisfactory  character. 

''  The  Senate,  therefore,  in  ratifying  the  Dallas-Clarendon  treaty,  felt 
obliged  to  amend  it  by  striking  out  all  that  part  of  it  which  contem- 
plated the  concurrence  of  this  Government  in  the  treaty  with  Honduras, 
and  simply  providing  for  a  recognition  by  the  two  Governments  of  the 
sovereign  right  of  Honduras  to  the  islands  in  question.  Great  Brit- 
ain found  itself  unable  to  concur  in  this  amendment,  and  the  Dallas- 
Clarendon  treaty,  therefore,  fell  to  the  ground.  It  was  clear,  however, 
that  the  objections  of  the  Senate  to  the  Honduras  treaty  were  not 
deemed  unreasonable  by  Her  Majesty's  Government,  because,  in  your 
lordship's  interview  with  the  President  on  the  22d  of  October,  1857, 
your  lordship  *  allowed  that  the  articles  establishing  the  administrative 

200 


CHAP.  VI.]  GRKAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.  [§150/ 

iiulepeudeuce  of  the  islands  might  have  beeu  larger  than  was  neces- 
sary. I  had  observed,'  you  added,  '  the  same  impression  in  the  corre- 
spondence of  Mr.  Wyke,  Her  Majesty's  charg6  d'affaires  at  Guatemala, 
who  seemed  to  admit  that  a  greater  participation  in  the  internal  Gov- 
ernment might  be  granted  to  the  authorities  of  Honduras,'  and  you 
made  '  no  doubt  that  Her  Majesty's  Government  would  entertain  any 
reasonable  suggestions  which  might  be  ofiered  to  them  in  that  sense.' 

"  And  again,  in  your  lordshii)'s  note  to  this  Department  of  November 
30,  1857,  you  recognize  the  same  probability  '  that  the  intervention  of 
the  Honduras  Government  in  the  administration  of  the  islands  may 
have  been  more  limited  than  was  necessary  or  even  advisable.' 

"  Such  was  doubtless  the  opinion  of  Honduras,  for  as  long  ago  as  May 
10,  1857,  I  was  informed  by  your  lordship  that  the  treaty  remained  un- 
ratified '  owing  to  some  objections  on  the  part  of  the  Government  of 
Honduras,'  and  that '  Her  Majesty's  Government  does  not  expect  that 
the  treaty  in  its  present  shape  will  be  definitely  sanctioned  by  that  Re- 
public' 

''  In  view  of  the  objectionable  j)ro visions  of  this  convention  with  Hon- 
duras, and  of  its  failure  to  be  sanctioned  by  that  Eepublic,  your  lord- 
ship, by  the  authority  of  Lord  Clarendon,  informed  me  on  the  6th  of 
May,  1857,  that  Her  Majesty's  Government  was  prepared  to  sanction  a 
new  treaty,  in  respect  to  the  Central  American  questions,  which  should 
in  all  respects  conform  to  the  Dallas-Clarendon  treaty,  as  ratified  by  the 
Senate,  except  that  to  the  simple  recognition  in  the  Senate's  substitute 
for  the  second  separate  article  of  the  sovereignty  of  Honduras  over  the 
Bay  Islands  there  was  to  be  added  the  following  passage :  '  Whenever 
and  so  soon  as  the  Eepublic  of  Honduras  shall  have  concluded  and  rati- 
fied a  treaty  with  Great  Britain  by  which  Great  Britain  shall  have  ceded 
and  the  Republic  of  Honduras  shall  have  accepted  the  said  islands  sub- 
ject to  the  provisions  and  conditions  contained  in  said  treaty.'  While 
this  condition  contemj^lated  a  new  treaty  with  Honduras  which  might 
possibly  avoid  the  objectionable  provisions  of  the  old  one,  yet  it  was 
quite  imi)ossible  for  the  United  States  to  become  a  party,  either  directly 
or  indirectly,  to  a  convention  which  was  not  in  existence,  or  whose  terms 
and  conditions  it  could  neither  know  nor  control.  For  this  reason  I 
informed  your  lordship  in  my  communication  of  ^fay  20,  that  your 
lordship's  proposition  was  declined  by  this  Government. 

"The  attempts  to  adjust  the  Central  American  questions  by  means  of 
a  supplementary  treaty  having  thus  failed  of  success,  and  the  subject 
not  being  of  a  character,  in  the  opinion  of  the  United  States,  to  admit 
of  their  reference  to  arbitration,  the  two  Governments  were  thrown 
back  upon  their  respective  rights  under  the  Clayton-Bulwer  treaty. 
While  each  Government,  however,  had  continued  to  insist  npon  its  own 
construction  of  this  treaty,  there  was  reason  to  believe  that  the  embar- 
rassments growing  out  of  their  conflicting  views  of  its  provisions  might 

201 


§  150/]  TREATIEf^.  [chap.  VI. 

be  practically  relieved  by  direct  iiegutialiuu   between  her  Majesty's 
Governmeut  and  the  States  of  Central  America. 

"In  tills  ^Yay  it  seemed  possible  that,  withont  any  injnstice  to  those 
States,  the  treaty  might  be  rendered  acceptable  to  both  conntries  as 
well  as  operative  for  the  disinterested  and  useful  purposes  which  it  had 
been  designed  to  serve.  The  President,  therefore,  was  glad  to  learu 
from  your  lordship,  on  the  l!)th  of  October,  ISaT,  that  Her  Majesty's 
Governmeut  had  'resolved  to  dispatch  a  representative  of  authority  and 
experience  to  Central  America,  to  make  a  definitive  settlement  of  all 
the  matters  with  regard  to  which  the  United  States  and  England  were 
still  at  variance,  and  who  would  be  instructed,'  as  your  lordship  be- 
lieved, 'to  carry  the  Clayton-Bulwer  treaty  into  execution  according  to 
the  general  tenor  of  the  interi)retation  put  upon  it  by  the  United  States, 
but  to  do  so  by  separate  negotiations  with  the  Central  American  Re- 
publics in  lieu  of  a  direct  engagement  with  the  Federal  Government.' 
This  announcement  could  not  fail  to  be  received  with  satisfaction  by 
the  President,  because  it  contemplated  the  substantial  accomidishment 
of  the  very  purposes  in  respect  to  the  treaty  which  the  United  States 
had  always  had  in  view,  and  so  long  as  these  were  accomplished  he 
assured  your  lordship  that  '  to  him  it  was  indiflerent  whether  the  con- 
cession contemplated  by  Her  Majesty's  Government  were  consigned  to 
a  direct  engagement  between  England  and  the  United  States  or  to 
treaties  between  the  former  and  the  Central  American  Pepublics;  the 
latter  method  might,  in  some  respects,  he  added,  be  even  more  agreea- 
ble to  him,  and  he  thought  it  would  be  more  convenient  to  Her  Majesty's 
Governmeut,  who  might,  with  greater  facility,  accede  to  the  claims  of 
the  weaker  party.'    *     ♦     * 

"The  explanations,  liowever,  anticipated  by  your  lordship  and  by 
myself  were  not  received,  and  about  three  mouths  after  the  arrival  of 
Sir  William  at  Washington  you  expressed  to  me  your  regret  that  you 
had  held  out  expectations  which  i)roved  unfounded,  and  which  had 
prompted  delay,  and  then  for  the  first  time  requested  an  answer  to  the 
proposals  of  Her  Majesty's  Government,  and  'especially  to  that  part  of 
them  relating  to  the  arbitration.'  It  was  even  then  suggested  that  the 
answer  was  desired  because  it  was  thought  to  be  appropriate  as  a  mat- 
ter of  form  and  not  because  the  explanations  which  had  been  waited 
for  were  deemed  wholly  unnecessary.  'I  overlooked  something  due 
to  forms,'  is  your  lordship's  language  in  the  note  of  April  12,  'in  my 
anxiety  to  promote  a  clearer  understanding,  and  I  eventually  learned  in 
an  official  shape  that  Her  Majesty's  Government,  following  their  better 
judgment,  desired,  before  making  any  further  communication,  a  reply  to 
their  overtures,  and  especially  to  that  part  of  them  referring  to  arbitra- 
tion.' Should  the  new  profiler  of  arbitration  be  declined,  it  was  clearly 
not  supposed  in  your  note  of  February  15  that  this  result  would  have 
any  tendency  to  interrupt  Sir  William's  efforts ;  but  in  that  event  it 
was  hoped,  you  informed  me,  that  these  efforts  would  result  in  a  settle- 
202 


CnAr.VI.]    GREAT  BRITAIN  :  CLAYTON-BULWER  TREATY,  1850.  [§150/' 

ineut  agreeable  to  the  United  States,  inasmuch  as  in  essential  points  it 
would  carry  the  treaty  of  1850  into  operation  in  a  manner  practically 
conformable  to  the  American  interpretation  of  that  instrument.  [Here 
follows  a  recapitulation  of  note  of  April  6,  above  given.] 

''The  neutrality  of  the  interoceauic  routes  and  their  freedom  from  the 
superior  and  controlling  influence  of  any  one  Government,  the  jjiinciples 
upon  which  the  Mosquito  Protectorate  may  be  arranged,  alike  with 
justice  to  the  sovereignty  of  Nicaragua  and  the  Indian  tribes,  the  sur- 
render of  the  Bay  Islands  under  certain  stipulations  for  the  benefit  of 
trade  and  the  protection  of  their  British  occupants,  and  the  definition 
of  the  boundaries  of  the  British  Belize — about  all  these  points  there  is 
no  apparent  disagreement  except  as  to  the  conditions  which  shall  be  an- 
nexed to  the  Bay  Islands'  surrender,  and  as  to  the  limits  which  shall  be 
fixed  to  the  settlements  of  the  Belize.  Is  it  possible  that,  if  approached 
in  a  spirit  of  conciliation  and  good  feeling,  these  two  points  of  difference 
are  not  susceptible  of  a  friendlj-  adjustment?  To  believe  this  would  be 
to  underestimate  the  importance  of  the  adjustment,  and  the  intelligent 
appreciation  of  this  importance  which  must  be  entertained  by  both 
nations. 

'•'  What  the  United  States  want  in  Central  America,  next  to  the  hap- 
piness of  its  people,  is  the  security  and  neutrality  of  the  interoceauic 
routes  which  lead  through  it.  This  is  equally  the  desire  of  Great  Britain, 
of  France,  and  of  the  whole  commercial  world.  If  the  principles  and 
policy  of  the  Clayton-Bulwer  treaty  are  carried  into  effect,  this  object  is 
accomplished.  When,  therefore,  Lord  Malmesbury  invites  new  over- 
tures from  this  Government  upon  the  idea  that  it  has  rejected  the  pro- 
posal embraced  in  Sir  William  Ouseley's  mission  for  an  adjustment  of 
the  Central  American  questions  by  separate  treaties  with  Honduras, 
Nicaragua,  and  Guatemala,  upon  terms  substantially  according  with 
the  general  tenor  of  the  American  interpretation  of  the  treaty,  I  have 
to  reply  that  this  very  adjustment  is  all  that  the  President  ever  desired, 
and  that  instead  of  having  rejected  that  proposal  he  had  expressed  his 
cordial  acceptance  of  it  so  far  as  he  understood  it,  and  had  anticipated 
from  it  the  most  gratifying  consequences. 

"Xothing  now  remains  for  me  but  to  inquire  of  your  lordship  whether 

the  overtures  contained  in  your  lordship's  note  of  November  30,  are  to 

-be  considered  as  withdrawn  by  Her  Majesty's  Government,  or  whether 

the  good  results  expected  in  the  beginning  from  Sir  William  Ouseley's 

mission  may  not  yet  be  happily  accomplished." 

Mr.  Cass,  Sec.  of  State,  to  Lord  Napier,  Nov.  8,  1858.    MSS.  Notes,  Gr.  Brit. 

"  Our  relations  with  Great  Britain  are  of  the  most  friendly  character. 
vSince  the  commencement  of  my  administration  the  two  dangerous 
fjuestions  arising  from  the  Clayton  and  Buhver  treaty,  and  from  the 
right  of  search  claimed  by  the  British  Government,  have  been  amicably 
and  honorably  adjusted. 

203 


§150/^]  TREATIES.  fciTAP.  VI. 

"The  discoidant  cuii.sUuctioii.s  ul'  the  Clapton  ami  Dulwer  treaty  be- 
tween the  two  Governments,  whieh  at  diflerent  i)eriods  of  the  discussion 
bore  a  threatening  aspect,  have  resulted  in  a  linal  settlement  entirely 
satisfactory  to  this  Government.  In  my  last  annual  message  I  informed 
Congress  that  the  British  Government  had  not  then  'completed  treaty 
arrangements  with  the  Kepublics  of  TTondnras  and  Nicaragua  in  ])ur- 
suance  of  the  understanding  between  the  two  (fO^•ernments.  It  is, 
nevertheless,  confidently  expected  that  this  good  work  will  ere  long  be 
accomplished.'  This  confident  exjiectation  has  since  been  fulfdled. 
Her  Britannic  IMajesty  concluded  a  treaty  with  Honduras  on  the  liSth 
November,  1859,  and  with  Nicaragua  on  the  28th  August,  18G0,  relin- 
quishing the  INIosquito  protectorate.  Besides,  by  the  former,  the  Bay 
Islands  are  recognized  as  a  part  of  the  Bepublic  of  Ilonduras.  It  may 
be  observed  that  the  stipulations  of  these  treaties  conform  in  every 
important  particular  to  the  amendments  adopted  by  the  Senate  of  the 
United  States  to  the  treaty  concluded  at  London  on  the  17th  October, 
18oG,  between  the  two  Governments.  It  will  be  recollected  that  this 
treaty  was  rejected  by  the  British  Government,  because  of  its  objection 
to  the  just  and  important  amendment  of  the  Senate  to  the  article  relat- 
ing to  Euatan  and  the  other  islands  in  the  Bay  of  Honduras." 
President  Buchauan,  Fourtli  Annual  Message,  18(J0. 

"Towards  the  close  of  Mr.  Polk's  administration  the  British  Gov- 
ernment, disturbed,  perhaps,  by  the  recent  acquisition  of  territory  by  the 
United  States  on  the  Pacific,  showed  what  we  thought  to  be  a  disposi- 
tion to  contend  with  the  Governments  of  the  Central  American  States, 
with  the  ultimate  object,  as  was  supposed,  of  acquiring  dominion  there, 
and  also  a  control  of  any  shii)-canal  which  might  be  made  between  the 
two  oceans  l>y  the  way  of  the  San  Juan  Biver  and  Lake  Nicaragua. 
British  subjects  had  long  before  that  time  lent  those  Governments 
money,  the  interest  on  which  was  in  arrears,  chiefly  in  consequence  of 
the  strife  between  the  States  which  ensued  upon  their  separation  and 
as  a  confederacy. 

"  War  measures  were  determined  upon  to  recover  this  interest ;  among 
others,  the  seizure  of  the  island  of  Tiger,  belonging  to  Honduras,  in 
the  Bay  of  Fonseca,  was  made  by  a  British  naval  force  in  October, 
1849.  This  seizure  was  protested  against  by  Mr.  Squier,  the  United 
States  charg6  d'affaires  in  Nicaragua,  and  a  disavowal  of  the  proceed- 
ings by  the  British  Government  was  required  by  Mr.  Clayton  in  an  in- 
struction to  Mr.  Abbott  Lawrence,  at  London,  of  the  29th  of  December, 
1849. 

"  Inasmuch  as  one  route  (by  some  sui)posed  the  best  route)  for  the  ship- 
canal  from  the  lake  to  the  Pacific  lay  along  the  Estero  Eeal,  which 
empties  into  the  Bay  of  Fonseca,  near  Tiger  Island,  Mr.  Squier  deemed 
himself  warranted  in  incorporating  in  a  general  commercial  treaty  with 
Honduras,  which  he  signed  on  the  28th  of  September,  1849,  provisions 
204 


C1IA1'.^'I.]    GREAT  BlilTAIN:  CLAYTON-BULWEK  TREATY^  1850.   [§150/ 

for  acquii  iDg  land  for  uaval  stations  on  that  island  or  on  the  continent  in 
its  viciuitj-.  Bj  what  is  called  a  protocol,  of  the  same  date,  Honduras 
ceded  Tiger  Island  to  the  United  States,  pending  the  ratification  or 
rejection  of  the  general  treaty,  provided  that  the  time  should  exceed 
eighteen  mouths. 

"  These  stipulations  were  entered  into  by  Mr.  Squier  without  instruc- 
tions from  the  Department,  and  when  the  treaty  and  additional  articles 
were  received,  he  was  reproved  for  them.  They  were  never  laid  before 
the  Senate.  It  is  not  to  be  doubted,  however,  that  they  occasioned  un- 
easiness to  the  British  Government,  and  in  a  great  degree  led  to  the 
Clayton-Bulwer  treaty  of  the  19th  of  April,  1850. 

"  The  preamble  of  that  treaty  states  that  its  object  was  to  fix  the  views 
and  intentions  of  the  parties  in  regard  to  the  ship-canal. 

"  The  first  article  of  the  treaty,  still  referring  to  the  ship-canal, stipu- 
lates that  neither  party  will  erect  fortifications  commanding  the  same, 
or  in  the  vicinity  thereof,  or  occupy,  or  fortify,  or  colonize,  or  assume,  or 
exercise  dominion  in  any  part  of  Central  America. 

"  It  seems  obvious  that  the  renunciation  by  the  parties  to  this  instru- 
ment of  a  right  to  acquire  dominion  in  Central  America  was  intended  to 
prevent  either  of  them  from  obtaining  control  over  the  proposed  ship- 
canal.  At  the  time  the  treaty  was  concluded  there  was  every  prospect 
that  that  work  would  not  only  soon  be  begun,  but  that  it  would  be 
carried  to  a  succesful  conclusion.  For  reasons,  however,  which  it  is 
not  necessary  to  specify,  it  never  was  even  commenced,  and  at  present 
there  does  not  appear  to  be  a  likelihood  of  its  being  undertaken.  It 
maybe  a  question,  therefore,  supposing  that  the  canal  should  never  be 
begun,  whether  the  renunciatory  clauses  of  the  treaty  are  to  have  per- 
petual ojjeration. 

"  Technically  speaking,  this  question  might  be  decided  in  the  negative. 
Still,  so  long  as  it  should  remain  a  question,  it  would  not  comport  with 
good  faith  for  either  party  to  do  anything  which  might  be  deemed  con- 
trary to  even  the  spirit  of  the  treaty. 

"It  is  becoming  more  and  more  certain  every  day  that  not  only  naval 
warfare  in  the  future,  but  also  all  navigation  of  war  vessels  in  time  ot 
peace,  must  be  by  steam.  This  necessity  will  occasion  little  or  no  incon- 
venience to  the  principal  maritime  powers  of  Europe,  and  especially  to 
Great  Britain,  as  those  powers  have  possessions  in  various  parts  of  the 
globe  where  they  can  have  stores  of  coal  and  provisions  for  the  use  ef 
their  vessels.  We  are  diflerently  situated.  Wo  have  no  possession 
beyond  the  limits  of  the  United  States.  Foreign  colonization  has  never 
been  favored  by  statesmen  in  this  country  either  on  general  grounds  or 
as  in  harmony  with  our  peculiar  condition.  There  is  no  change  or  likely 
to  be  any  in  this  respeci.  It  is  indispensable  for  us,  however,  to  have 
coaling  stations  under  our  own  Hag  for  naval  observation  and  police, 
and  for  defensive  war  as  well  as  for  the  protection  of  our  widely-spread 
commerce  when  we  arc  at  peace  ourselves.    This  want,  even  for  our 

205 


§  150/]  TREATIES.  [chap.  VI. 

commercial  marine,  is  nowhere  more  sensibly  felt  than  on  the  track 
between  Panama  and  San  Francisco.  The  question  then  occurs  what 
points  beyond  our  jurisdiction  would  be  most  eligible  for  this  i)urposo? 

"  Whatever  oi)inion  might  be  entertained  in  regard  to  any  other  sites, 
there  would  be  no  question  that  Tiger  Island  would  be  exceedingly  de- 
sirable for  that  purpose. 

"  Under  these  circumstances,  you  will  sound  Lord  Clarendon  as  to  the 
dis])osition  of  his  Government  to  favor  us  in  acquiring  coaling  stations 
in  Central  America,  notwithstanding  the  stipulations  contained  in  the 
Clayton-Bulwer  treaty.  In  doing  this,  however,  you  will  use  general 
terms  only,  and  will  by  no  means  allow  it  to  be  sui)po.sed  that  we  par- 
ticularly covet  Tiger  Island.  You  will  execute  this  instruction  at  such 
time  and  in  such  way  as  to  you  may  seem  best,  and  inform  the  Depart- 
ment of  the  result,  so  that  the  United  States  minister  to  Honduras  may 
be  directed  to  proceed  accordingly. 

"  It  is  supposed  that  you  may  probably  be  able  to  introduce  the  subject 
to  the  Earl  of  Clarendon's  attention  by  suggesting  that  a  negotiation 
with  a  view  to  the  special  end  mentioned  might  be  made  an  element  in 
a  general  negotiation  for  settlement  of  the  northwest  boundary  question 
and  of  the  conflicting  claims  of  the  two  countries  which  have  arisen 
during  the  late  rebellion  in  the  United  States." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  April  25,  186().     MSS.  Inst.,  Gr.  Brit. 

The  report  of  Mr.  Fish,  Secretary  of  State,  July  14, 1870,  on  the  rela- 
tion of  the  Monroe  doctrine  to  Central  America,  in  connection  with  the 
Clayton-Bulwer  treaty,  is  given  at  large,  supra,  §  57. 

"You  are  aware  that  a  main  object  of  the  Clayton-Bulwer  treaty,  so 
called,  of  the  19th  of  April,  1850,  was  to  provide  against  obstruction  by 
either  party  to  a  ship.canal  to  the  Pacific  through  Nicaragua.  A  work 
of  that  kind  was  then  deemed  specially  necessary  and  desirable  for  us, 
as  California  had  recently  been  acquired,  the  only  practicable  way  to 
which  was  across  the  Isthmus  of  Panama,  or  around  Cape  Horn.  For 
some  time  previously  to  the  date  of  that  instrument,  and  especially  dur- 
ing the  considerable  period  when  the  United  States  were  without  a 
diplomatic  representative  in  Central  America,  it  seemed  to  be  the  policy 
of  the  British  Government  to  avail  itself  of  what  was  called  its  protect- 
orate of  the  King  of  Mosquitos  to  wrest  from  Nicaragua  that  part  of  its 
teiTitory  claimed  on  behalf  of  that  Indian  chief,  including,  of  course,  the 
mouths  of  the  San  Juan  River,  by  the  way  of  which  it  was  supposed  the 
proposed  ship  canal  must  pass.  The  Clayton-Bulwer  treaty  effectually 
checked  this  pretension.  It  also  in  terms  forbade  cither  party  to  occupy 
or  fortify  in  any  part  of  Central  America.  The  British  Government, 
probably  actuated  by  an  apprehension  that  this  stipulation  might  be 
construed  against  their  claims  at  Belize,  Honduras,  instructed  Sir  H. 
L.  Bulwer  to  make  the  declaration  of  29th  of  June,  1850,  when  the  ratifi- 
cations were  to  be  exchanged,  to  the  efiect  that  they  did  not  understand 

200 


CHAP. VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.    [§150/ 

the  engagements  of  the  convention  to  apply  to  Belize  and  its  dependen- 
cies. In  a  note  to  Sir  Henry  of  the  4th  of  July,  1850,  Mr.  Clayton  ac- 
knowledged that  it  was  not  the  purpose  of  the  convention  to  apply  to 
Belize  and  its  dependencies. 

''A  similar  acknowledgment  is  contained  in  a  memorandum  of  the 
5th  of  July,  1850,  signed  by  Mr.  Clayton,  which  says  that  he  at  the 
same  time  declined  to  affirm  or  deny  the  British  title  in  their  settle- 
ment or  its  alleged  dependencies.  Among  the  latter  what  are  called 
the  Bay  Islands  were  claimed  to  belong.  The  British  Government, 
however,  having  converted  them  into  a  separate  colony,  this  and  the 
continuance  of  its  protectorate,  so  called,  over  the  Mosquito  Indians, 
were  regarded  as  virtually  such  breaches  of  the  Clayton-Bulwer  treaty 
as  to  call  for  the  remonstrances  which  Mr.  Buchanan,  and  subsequently 
Mr.  Dallas,  were  instructed  to  address,  and  which  they  did  address,  to 
that  Government.  The  answer  of  that  Government  was  in  substance 
that  the  Clayton-Bulwer  treaty  was  merely  designed  to  provide  for  the 
future,  and  was  not  intended  to  afiect  any  rights  or  claims  which  Great 
Britain  may  have  had  in  Central  America  at  the  time  of  its  conclusion. 
This  pretension  was  effectually  answered  by  Mr.  Buchanan  in  his  reply 
to  Lord  Clarendon's  memorandum  on  the  subject,  which  you  will  find 
on  the  file  or  record  of  your  legation.  Ultimately,  on  the  17th  of  Octo- 
ber, 185G,  what  is  called  the  Dallas-Clarendon  treaty  was  signed  at 
London.  The  object  of  this  instrument  was  to  compose  the  differences 
between  the  two  Governments,  especially  in  regard  to  the  Bay  Islands 
and  the  Mosquito  protectorate.  When  the  treaty  reached  here  it  must 
have  been  obvious  to  the  Executive  that  if  it  accomplished  either  of 
those  purposes  this  was  in  an  incomplete  and  unacceptable  wa3^  Still 
tlie  treaty  was  laid  before  the  Senate,  which  body,  though  it  did  not 
absolutely  reject  it,  appended  to  it  so  many  and  such  important  amend- 
ments that  they  were  not  accepted  by  the  British  Government,  and  the 
whole  business  proved  abortive. 

"The  British  Government  then  sought  negotiations  with  Nicaragua, 
Guatemala,  and  Honduras,  separately,  to  attain  the  principal  objects 
which  it  hoped  to  compass  by  means  of  the  Dallas- Clarendon  treaty,  if 
it  had  gone  into  effect  as  it  was  signed. 

"The  purposes  of  that  Government  were  in  the  main  accomplished. 
On  the  28th  of  January,  1860,  a  treaty  between  Great  Britain  and 
Nicaragua  was  signed  at  Managua.  Though  this  instrument  restored 
to  that  Kepublic  the  nominal  sovereignty  over  that  part  of  its  territory 
which  had  previously  been  claimed  as  belonging  to  the  kingdom  of  the 
Mosquitos,  it  assigned  boundaries  to  the  Mosquito  Keservation  probablj 
beyond  the  limits  which  any  member  of  that  tribe  had  ever  seen,  even 
when  in  chase  of  wild  animals.  Worst  of  all,  liowever,  it  confirmed  the 
grants  of  land  previously  made  in  Mosquito  territory.  The  similar 
stipulation  on  this  subject  in  the  Dallas-Clarendon  treaty  was  i)erhaps 
the  most  objectionable  of  any,  as  it  violated  the  cardinal  rule  of  all 

207 


§  150/.]  TREATIES.  [chap.  VI. 

European  colonists  iu  America,  iucludiDg  Great  Britain  herself,  that 
the  aborigines  had  no  title  to  the  soil  which  they  could  confer  upon 
individuals. 

"This  rule  has  repeatedly  been  coutirnied  by  judicial  decisions,  and 
especially  by  the  Supreme  Court  of  the  United  States.  It  is  supposed  to 
be  superfluous  to  add  that  it  is  understood  the  grantees  of  the  Mosquito 
chief,  respecting  whose  interests  the  British  Government  was  so  solic- 
itous, were  the  subjects  of  the  latter. 

"It  is  supposed  that  the  expedition  of  Walker  to  Nicaragua  made 
sucb  an  unfiivorable  impression  on  public  opinion  there,  iu  respect  to 
this  country,  as  to  prepare  the  way  for  the  treaty  with  Great  Britain. 
A  rumor  was  current  in  that  quarter,  and  was  by  many  believed  to  be 
true,  that  Walker  was  an  agent  of  this  Government,  which,  it  was  sup- 
posed, had  covertly  sent  him  thither  to  obtain  control  of  the  country. 
This,  however,  was  so  far  from  the  truth  that  everj'thing  within  its 
power  was  done  by  this  Government  towards  preventing  the  departure 
of  Walker. 

''Besides  the  treaty  with  Nicaragua,  just  adverted  to,  there  was  a 
treaty  between  Great  Britain  and  Honduras,  signed  on  the  28th  Novem- 
ber, 1859,  the  main  object  of  which  was  the  restitution  to  the  latter  of 
the  Bay  Islands,  which  had  for  some  time  before  been  converted  into  a 
British  colony. 

"This  treaty  also  contained  stipulations  in  regard  to  Mosquito  Indians 
iu  Honduras  territory  similar  to  that  in  the  treaty  with  Nicaragua. 

"On  the  30th  of  April,  1859,  a  treaty  between  Great  Britain  and  Gua- 
temala was  also  signed,  by  which  the  boundaries  of  the  British  settle- 
ment at  Belize,  so  called,  were  extended  to  the  Sarstoon  Eiver.  This 
instrument  contained  provisions  for  the  appointment  of  commissioners 
to  mark  the  boundaries,  and  for  the  construction  of  a  road  from  Guate- 
mala to  the  fittest  place  on  the  Atlantic  coast  near  Belize.  By  a  sup 
plementary  convention  between  the  parties,  of  the  5th  of  August,  18G3, 
Great  Britain  agreed,  upon  certain  conditions,  to  contribute  fifty  thou 
sand  pounds  sterling  towards  the  construction  of  the  road  referred  to. 

"From  the  note  of  the  4th  of  December  last,  addressed  to  this  De- 
partment by  Mr.  Dardon,the  minister  of  Guatemala  here,  a  copy  of  which 
is  inclosed,  it  appears  that  when  the  joint  commission  for  running  the 
boundary  line  reached  the  Sarstoon  River  the  British  commissioner, 
finding  that  his  countrymen  were  trespassing  beyond  that  limit,  refused 
to  proceed,  and  the  stipulation  on  the  subject,  if  not  virtually  canceled, 
has,  at  lea.st,  been  suspended. 

"The  supplemenrary  convention  not  having  been  ratified  by  Guate- 
mala in  season,  it  is  stated  that  the  British  Government  has  notified 
that  of  Guatemala  that  it  would  regard  the  stipulation  on  the  subject 
of  the  road  contained  in  the  treaty  of  1859  as  at  an  end. 

"  Other  important  information  on  thesa  subjects  is  contained  in  the 
letter  and  its  accompaniments  of  Mr.  Henry  Savage,  to  this  Depart- 
:i08 


CHAP.  VI.]    GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.   [§150/ 

uient  of  the  ICtli  of  October  last,  ;i  copy  of  which  is  inclosed.    He  is  a 
uative  of  this  country  and  at  one  time  was  consul  at  Guatemala. 

"He  has  frequently,  in  the  absence  of  a  diplomatic  agent  of  the  United 
States  in  that  quarter,  furnished  this  Department  with  valuable  infor- 
mation in  regard  to  Central  American  affairs. 

"Mr.  Dardon  says  that  his  Government  also  regards  its  treaty  of 
1859  with  Great  Britain  at  an  end,  and  requests  on  its  behalf  the  co- 
operation and  support  of  this  Government  toward  preventing  further 
encroachments  by  British  subjects  on  the  territory  of  Guatemala.  It 
is  believed  that  if  such  encroachments  are  authorized  or  countenanced 
by  that  Government  it  will  be  tantamount  to  a  breach  of  its  engage- 
ment not  to  occupy  any  part  of  Central  America.  Before,  however, 
officially  mentioning  the  subject  to  Earl  Granville,  it  would  be  advisa- 
ble to  ascertain  the  correctness  of  the  representation  of  Mr.  Dardon,  as 
to  the  cause  of  the  discontinuance  of  the  demarkation  of  the  boundary. 

"If  the  statement  of  that  gentleman  should  prove  to  be  correct,  jou 
will  then  formally  remonstrate  against  any  trespass  by  British  subjects, 
with  the  connivance  of  their  Government,  npon  the  territory  of  Guate- 
mala, as  an  infringement  of  the  Clayton-Bulwer  treaty,  which  will  be 
very  unacceptable  in  this  country." 

Mr.  Fish,  Sec,  of  State,  to  Mr.  Sclieuck,  Apr.  20, 1872.     MSS.  lust.,  Gr.  Brit. 

"Aside  from  the  well  understood  doctrines  of  this  Government  as  to 
any  new  acquisitions  of  American  territory  by  European  powers,  it 
seems  unquestionable  that  the  Clayton-Bulwer  treaty  precludes  the  ac- 
quisition of  those  islands  by  Great  Britain.  The  intentions  which  are 
imputed,  therefore,  to  that  power,  looking  in  that  direction  may  well  be 
discredited.  Still  they  should  awaken  the  attention  and  arouse  the 
vigilance  of  this  Government.  Even  should  the  tendency  you  report 
toward  the  alienation  of  the  Bay  Islands  take  another  direction,  it 
would,  of  course,  be  impossible  for  us  to  remain  indifferent  or  to  ac- 
quiesce in  any  other  European  power  acquiring  any  of  them." 

Mr.  Evarts,  Sec.  of  S^ate.toMr.  Logan,  Mar.  4,  1880.     MSS.  Inst.,  Cent.  Am. 

As  to  the  Isthmus,  see  more  fully  infra,  $$  287^. 

"  In  pursuance  of  the  premises  laid  down  in  my  circular  note  of  June 
24  of  this  year  touching  the  determination  of  this  Government  with  re- 
spect to  the  guaranteeof  neutrality  for  the  interoceauic  canal  at  Panama, 
it  becomes  my  duty  to  call  your  attention  to  the  convention  of  Ai)ril  19, 
1850,  between  Great  Britain  and  the  United  States,  commonly  knowu 
as  the  Clayton-Bulwer  treaty. 

"According  to  the  articles  of  that  convention  the  high  contracting 
parties,  in  referring  to  an  interoceauic  canal  through  Nicaragua,  agreed 
*  that  neither  the  one  nor  the  other  will  ever  obtain  or  maintain  for  it- 
self any  exclusive  control  over  said  shii)  canal,  and  that  neither  will 
ever  erector  maintain  any  fortihcations  commanding  the  same  or  in  the 
Ficinity  thereof.'  In  a  concluding  paragraph  iho  high  contracting 
S.  Mis.  IGL'— vol..  n li  209 


§  150/]  TREATIES.  [cnAP.  VI. 

parties  agreed  'to  extend  their  protectiou  by  treaty  sMpulatious  to  any 
other  i)ractical  coiuuiunications,  whether  by  caual  or  railway,  across 
the  Isthmus  *  •  *  wliioh  are  now  pro])osed  to  be  established  by 
way  of  Tehuautepec  or  Panama.' 

"This  convention  was  made  more  than  thirty  years  ago,  under  excep- 
tion;'! and  oxtrnordinary  conditions,  whicli  have  long  since  ceased  to 
exist — conditions  which  at  best  were  temporary  in  their  nature,  and 
which  can  never  be  reproduced. 

"The  remarkable  development  of  the  United  State.s  on  the  Pacific 
coast  since  that  time  has  created  new  duties  for  this  Government,  and 
devolved  new  responsibilities  upon  it,  the  full  and  complete  discharge 
of  which  requires  in  the  judgment  of  the  President  some  essential  modi- 
fications in  the  Clayton-Buhver  treaty.  The  interests  of  Iler  ]\Iiijesty's 
Government  involved  in  this  question,  in  so  far  as  they  may  be  prop- 
erly judged  by  the  observation  of  a  friendly  power,  are  so  inconsider- 
able in  comparison  with  those  of  the  United  States  that  the  President 
hopes  a  readjustment  of  the  terms  of  the  treaty  may  be  reached  in  a 
spirit  of  amity  and  concord. 

"  The  respect  due  to  Her  Majesty's  Government  demands  that  the 
objections  to  the  perpetuity  of  the  convention  of  1850,  as  it  now  exists, 
should  be  stated  with  directness  and  with  entire  frankness.  And  among 
the  most  salient  and  palpable  of  these  is  the  fact  that  the  operation  of 
the  treaty  practically  concedes  to  Great  Britain  the  control  of  whatever 
canal  may  be  constructed.    *     *     * 

"  The  treaty  binds  the  United  States  not  to  use  its  military  force  in 
any  precautionary  measure,  while  it  leaves  the  luival  jiower  of  Great 
Britain  i)erfectly  free  and  unrestrained;  ready  at  any  moment  of  need 
to  seize  both  ends  of  the  canal,  and  render  its  military  occupation  on 
land  a  matter  entirely  within  the  discretion  of  Hor  Majesty's  Govern- 
ment. 

"The  military  power  of  the  United  States,  as  shown  by  the  recent 
civil  war,  is  without  limit,  and  in  any  conflict  on  the  American  conti- 
nent altogether  irresistible.  The  Clayton-Buhver  treaty  commands  this 
Government  not  to  use  a  single  regiment  of  troops  to  protect  its  inter- 
ests in  connection  with  the  iuteroceauic  caual,  but  to  surrender  the 
transit  to  the  guardianship  and  control  of  the  British  navy.  If  no 
American  soldier  is  to  be  quartered  on  the  Isthmus  to  protect  the  rights 
of  his  country  in  the  interoceanic  canal,  surely,  by  the  fair  logic  of  neu- 
trality, no  war  vessel  of  Great  Britain  should  be  permitted  to  a])pear  in 
the  waters  that  control  either  entrance  to  the  caual. 

"  A  more  comprehensive  objection  to  the  treaty  is  urged  by  this  Gov- 
ernment, Its  provisions  embody  a  misconception  of  the  relative  posi- 
tions of  Great  Britain  and  the  United  States  with  respect  to  the  inter- 
ests of  each  Government  in  questions  pertaining  to  this  continent.  The 
Government  of  the  United  States  has  no  occasion  to  disavow  an  ag- 
gressive disposition.  Its  entire  policy  establishes  its  pacific  character, 
210 


CHAP.  VI.]   GREAT  BEITAIN :  CLAYTON-BULWER  TREATY,  1850.  [§150/ 

and  among  its  chief  aims  is  to  cultivate  tlie  most  friendly  and  intimate 
relations  with  its  neighbors,  both  independent  and  colonial.  At  the 
same  time,  this  Government,  with  respect  to  European  states,  will  not 
consent  to  perpetuate  any  treaty  that  impeaches  our  right  and  long- 
established  claim  to  priority  on  the  American  continent.     *     *     * 

"The  States  and  Territories  appurtenant  to  the  Pacific  Ocean  and 
dependent  upon  it  for  commercial  outlet,  and  hence  directly  interested 
in  the  canal,  comprise  an  area  of  nearly  eight  hundred  thousand  square 
miles,  larger  in  extent  than  the  German  Empire  and  the  four  Latin 
countries  of  Europe  combined.     *     *     * 

''  If  a  hostile  movement  should  at  any  time  be  made  against  the 
Pacific  coast,  threatening  danger  to  its  people  and  destruction  to  its 
property,  the  Government  of  the  United  States  would  feel  that  it  had 
been  unfaithful  to  its  duty  and  neglectful  towards  its  own  citizens  if  it 
permitted  itself  to  be  bound  by  a  treaty  which  gave  the  same  right 
through  the  canal  to  a  war  ship  bent  on  an  errand  of  destruction  that 
is  reserved  to  its  own  Xavy,  sailing  for  the  defense  of  our  coast  and  the 
protection  of  the  lives  of  our  people.  And  as  England  insists  by  the 
might  of  her  power  that  her  enemies  in  war  shall  strike  her  Indian, 
possessions  only  by  doubling  the  Cape  of  Good  Hope,  so  the  Govern- 
ment of  the  United  States  will  equally  insist  that  the  interior,  more 
speedy,  and  safer  route  of  the  canal  shall  be  reserved  for  ourselves, 
while  our  enemies,  if  we  shall  ever  be  so  unfortunate  as  to  have  any, 
shall  be  remanded  to  the  voyage  around  Cape  Horn. 

"A  consideration  of  controlling  influence  in  this  question  is  the  well- 
settled  conviction  on  the  part  of  this  Government  that  only  by  the 
United  States  exercising  supervision  can  the  Isthmus  canals  be  defi- 
nitely and  at  all  times  secured  against  the  interference  and  obstruction 
incident  to  war.  A  mere  agreement  of  neutrality  on  paper  between 
the  great  powers  of  Europe  might  prove  ineffectual  to  preserve  the 
canal  in  time  of  hostilities.  The  first  sound  of  a  cannon  in  a  general 
European  war  would  in  all  probabilily  annul  the  treaty  of  neutrality, 
and  the  strategic  position  of  the  canal,  commanding  both  oceans,  might 
be  held  by  the  first  naval  power  that  could  seize  it.  If  this  should  be 
done  the  United  States  would  suffer  such  grave  inconvenience  and  loss 
in  her  domestic  commerce  as  would  enforce  the  duty  of  a  defensive  and 
protective  war  on  her  part  for  the  mere  purpose  of  gaining  that  control 
which  in  advance  she  insists  is  due  to  her  position  and  demanded  by 
her  necessities. 

"  I  am  not  arguing  or  assuming  that  a  general  war,  or  any  war  at  all, 
is  imminent  in  Europe.  But  it  must  not  be  forgotten  that  within  the 
past  twenty-five  years  all  the  great  powers  of  Euroi)e  have  been  en- 
gaged in  war;  most  of  them  more  than  once.  In  only  a  single  instance 
in  the  past  hundred  years  has  the  United  States  exchanged  a  hos- 
tile shot  with  an  J-  European  power.     It  is  in  tli(^  liighest  degree  iui- 

211 


§  150/]  TREATIES.  [chap.  VI. 

probable  that  lur  a  hiuKlicd  years  to  come  even  that  experieuee  will  bo 
repeated. 

"  It  eonseiiuently  beeoines  evident  that  the  one  conclusive  mode  of 
preserving'  any  Isthmus  canal  from  the  i)Ossible  distraction  and  destruc- 
liou  of  war  is  to  place  it  under  the  control  of  that  Government  least 
likely  to  be  enj^aged  in  war,  and  able,  in  any  and  every  event,  to  enforce 
the  guardianship  which  she  shall  assume. 

"  For  self-protection  to  her  own  interests,  therefore,  tbo  United  States 
in  the  first  instance  asserts  her  right  to  control  the  Isthmus  transit. 
And,  secondly,  she  oilers  by  such  control  that  absolute  neutralization 
of  the  canal  as  respects  European  powers  which  (;an  in  no  other  way 
be  certainly  attained  and  lastingly  assured. 

"Another  consideration  I'oieibly  suggests  the  necessity  of  modifying 
the  convention  under  discussion.  At  the  time  it  was  agreed  to.  Great 
Britain  and  the  United  States  were  the  only  nations  prominent  in  the 
commerce  of  Central  and  South  America.  Since  that  time  other  lead- 
ing nations  have  greatly  enlarged  their  commercial  connections  with 
that  country,  and  are  to-day  contending  for  supremacy  in  the  trade  of 
those  shores.  AVithin  the  past  four  years,  indeed,  the  number  of  French 
and  German  vessels  landing  on  the  two  coasts  of  Central  America  far 
exceed  the  number  of  British  vessels.    *    *     * 

"  One  of  the  motives  that  originally  induced  this  Government  to  as- 
sent to  the  Clayton-Bulwer  treaty,  not  distinctly  expressed  in  the  instru- 
ment, but  inferable  from  every  line  of  it,  was  the  expected  aid  of  British 
capital  in  the  construction  of  the  Nicaraguau  canal.  That  expectation 
has  not  been  realized,  and  the  changed  condition  of  this  country  since 
1850  has  diminished,  if  it  has  not  entirely  removed  from  consideration, 
any  advantage  to  be  derived  from  that  source.  Whenever,  in  the  judg- 
ment of  the  United  States  Government,  the  time  shall  be  auspicious 
and  the  conditions  favorable  for  the  construction  of  the  Nicaraguan  ca- 
nal, no  aid  will  be  needed  outside  of  the  resources  of  our  own  Govern- 
ment and  people ;  and  while  foreign  capital  will  always  be  welcomed 
and  never  repelled,  it  cannot  henceforth  enter  as  an  essential  factor  in 
the  determination  of  this  problem. 

"  It  is  earnestly  hoped  by  the  President  that  the  considerations  now 
l)resented  will  have  due  weight  and  influence  with  Her  Majesty's  Gov- 
ernment, and  that  the  modifications  of  the  treaty  desired  by  the  United 
States  will  be  conceded  in  the  same  friendly  6i)irit  in  w  liich  they  are 
asked.  The  following  is  a  summary  of  the  changes  necessary  to  meet 
the  views  of  this  Government : 

"  First.  Every  i)art  of  the  treaty  which  forbids  the  United  States 
fortifying  the  canal  and  holding  the  i)olitical  control  of  it  in  conjunc- 
tion with  the  country  in  which  it  is  located  to  be  canceled. 

"Second.  Every  part  of  the  treaty  in  which  Great  Britain  and  the 
United  States  agree  to  make  no  acquisition  of  territory  in  Central 
America  to  remain  in  full  force.  As  an  original  proposition,  this  Gov- 
212 


CHAP. VI.]   GREAT  BRITAIN:  CLxVYTOX-BULWER  TREATY,  1850.    [§150/ 

ernment  would  not  admit  that  Great  Britain  and  the  United  States 
should  be  put  on  the  same  basis,  even  negatively,  with  respect  to  terri- 
torial acquisitions  on  the  American  continent,  and  would  be  unwilling 
to  establish  such  a  precedent  without  full  explanation.  But  the  treaty 
contains  that  provision  with  respect  to  Central  America,  and  if  the 
United  States  should  seek  its  annulment,  it  might  give  rise  to  erroneous 
and  mischievous  apprehensions  among  a  ])eoi»le  with  whom  this  Govern- 
ment desires  to  be  on  the  most  friendly  terms.  The  United  States  has 
taken  special  occasion  to  assure  the  Spanish- American  Republics  to 
the  south  of  us  that  we  do  not  intend  and  do  not  desire  to  cross  their 
borders  or  in  any  way  disturb  their  territorial  integrity,  and  we  shall 
not  willingly  incur  the  risk  of  d  misunderstanding  by  annulling  the 
clauses  in  the  Clayton-Bulwer  treaty  which  forbid  .such  a  step  with 
Central  America.  The  acquisition  of  military  and  naval  stations  neces- 
sary for  the  protection  of  the  canal  and  voluntarily  ceded  to  the  United 
States  by  the  Central  American  States  not  to  be  regarded  as  a  viola- 
tion of  the  provisions  contained  in  the  foregoing. 

"  Third.  The  United  States  will  not  object  to  maintaining  the  clause 
looking  to  the  establishment  of  a  free  port  at  each  end  of  whatever 
canal  may  be  constructed,  if  England  desires  it  to  be  retained. 

"Fourth.  The  clause  in  which  the  two  Governments  agreed  to  make 
treaty  stipulations  for  a  joint  protectorate  of  whatever  railway  or  canal 
might  be  constructed  at  Tehuantepec  or  Panama  has  never  been  per- 
fected. No  treaty  stipulations  for  the  proposed  end  have  been  suggested 
by  either  party,  although  citizens  of  the  United  States  long  since  con- 
structed a  railway  at  Panama,  and  are  now  engaged  in  the  same  work 
at  Tenhuantepec.  It  is  a  fair  presumption,  in  the  judgment  of  the  Pres- 
ident, that  this  provision  should  be  regarded  as  obsolete  by  the  non- 
action and  common  consent  of  the  two  Governments. 

"  Fifth.  The  clause  defining  the  distance  from  either  end  of  the  canal 
where  in  time  of  war  captures  might  be  made  by  either  belligerent  on 
the  high  seas  was  left  incomplete,  and  the  distance  was  never  de- 
termined. In  the  judgment  of  the  President,  speaking  in  the  interest 
of  peaceful  commerce,  this  distance  should  be  made  as  liberal  as  i)Os- 
sible,  and  might,  with  advantage,  as  a  question  relating  to  the  high 
seas  and  common  to  all  nations,  be  a  matter  of  stipulation  between  the 
great  powers  of  tbe  world. 

"  In  assuming  as  a  necessity  the  political  control  of  whatever  canal  or 
canals  may  be  constructed  across  the  Isthmus,  the  United  States  will 
act  in  entire  harmony  with  the  Governments  within  whose  territory  the 
canals  shall  be  located.  Between  the  United  States  and  the  other 
Ameri(;an  Itopublics  there  can  be  no  hostility,  no  jealousy,  no  rivalry, 
no  distrust.  This  Government  (entertains  no  design  in  connection  with 
this  project  for  its  own  advantage,  which  is  not  also  for  the  equal  or 
greater  advantage  of  the  country  to  be  directly  and  immediately  allected. 
Nor  does  the  United  States  seeic  anj'  exclusiv-;  or  narrow  commercial 

21.] 


\S  150/]  TREATIES.  [chap.  VI. 

advantage.  Jt  frankly  agrees  and  will  by  i)ul»lic  i>roclamation  declare 
at  tbe  proper  time,  in  conjunction  with  the  Republic  on  whose  soil  the 
canal  may  be  located,  that  the  same  rights  and  privileges,  the  same  tolls 
and  obligations  for  the  use  of  the  canal,  shall  ai)ply  with  absolute  im- 
partiality to  the  merchant  marine  of  every  nation  on  the  globe.  And 
equally  in  time  of  peace,  the  harmless  nse  of  the  canal  shall  be  freely 
granted  to  the  war  vessels  of  other  nations.  In  time  of  war,  aside  from 
the  defensive  nse  to  be  made  of  it  by  the  country  in  which  it  is  con- 
structed and  by  the  United  Stateo,  the  canal  shall  be  imi)artially  closed 
against  the  war  vessels  of  all  belligerents. 

"It  is  the  desire  and  determination  of  the  United  States  that  the 
canal  shall  be  nsed  only  for  the  development  and  increase  of  peaceful 
commerce  among  all  the  nations,  and  shall  not  be  considered  a  strategic 
])oint  in  warfare,  which  may  tempt  the  aggression  of  belligerents  or  be 
seized  under  the  compulsions  of  military  necessity  by  auj-  of  the  great 
powers  that  may  have  contests  in  which  the  United  States  has  no  stake 
and  will  take  no  part. 

"If  it  be  asked  why  the  United  States  objects  to  the  assent  of  Euro- 
pean Governments  to  the  terms  of  neutrality  for  the  operation  of  the 
canal,  my  answer  is  that  the  right  to  assent  imjdies  the  right  to  dis- 
sent, and  thus  the  whole  question  would  be  thrown  open  for  contention 
as  an  international  issue.  It  is  the  lixed  purpose  of  the  United  States 
to  confine  it  strictly  and*  solely  as  an  American  question,  to  be  dealt 
with  and  decided  by  the  American  Government. 

"  In  presenting  the  views  contained  herein  to  Lord  Granville,  you  will 
take  occasion  to  say  that  the  Government  of  the  United  States  seeks 
this  particular  time  for  the  discussion  as  most  opportune  and  auspicious. 
At  no  period  since  the  peace  of  1783  have  relations  between  the  British 
and  American  Governments  been  so  corOial  and  friendly  as  now.  And 
I  am  sure  Her  Majesty's  Government  will  find  in  the  views  now  sug- 
gested and  the  proi)ositions  now  submitted  additional  evidence  of  the 
desire  of  this  Government  to  ren)ove  all  possible  grounds  of  controversy 
between  two  nations  which  have  so  many  interests  in  common  and  so 
many  reasons  for  honorable  and  lasting  peace. 

"You  will,  at  the  earliest  opportunity,  acquaint  Lord  Granville  with 
the  purpose  of  the  United  States  touching  the  Clayton-Bulwer  treaty, 
and  in  your  own  way  you  will  impress  him  fully  with  the  views  of  your 
Government. 

"  I  refrain  from  directing  that  a  copy  of  this  instruction  be  left  with 
his  lordship,  because  in  reviewing  the  case  I  have  necessarily  been  com- 
pelled in  drawing  illustrations  from  British  policy  to  indulge  somew^hat 
freely  in  the  argumentum  ad  hominem. 

"This  course  of  reasoning  in  an  instruction  to  our  own  minister  is  al- 
together legitimate  and  pertinent,  and  yet  might  seem  discourteous  if 
addressed  directly  to  the  British  Government.  You  may  deem  it  expe- 
214 


CHAP.  VI  ]    GREAT  BEITAIX:  CLAYTON-BULWER  TREATY,  1850.    [§150/ 

(lient  to  make  this  explauatiou  to  Lord  Grauville,  aud  if,  afterward,  he 
shall  desire  a  copy  of  this  instruction,  you  will  of  course  furnish  it." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lowell,  Nov.  19,  1881.     MSS.  Inst.,  Gr.  Brit.  ; 
For.  Eel.,  1881. 

"  In  the  discussions  between  the  two  Governments  which  attended 
the  failure  of  the  Clarendon-Dallas  treaty  the  attitude  of  the  United 
States  with  respect  to  the  Clayton-Bulwer  treaty  was  amply  defined. 
As  early  as  the  12th  of  March,  1857, 1  find  that  General  Cass,  then  Sec- 
retary of  State,  in  the  course  of  a  conference  with  Lord  Napier,  Her 
Majesty's  representative  'passed  some  reflection  on  the  Clayton-Bulwer 
treaty ;  he  had  voted  for  it,  and  in  doing  so  he  believed  that  it  abrogated 
all  intervention  on  the  part  of  England  in  the  Central  American  terri- 
tory. The  British  Government  had  put  a  different  construction  on  the 
treaty,  and  he  regretted  the  vote  he  had  given  in  its  favor.'  (Dispatch 
of  Lord  Napier  to  the  Earl  of  Clarendon,  March  12,  1857.) 

"  On  the  Gth  of  May,  1857,  President  Buchanan,  in  an  audience  given 
to  Lord  Napier  and  in  response  to  his  lordship's  suggestion  that  if  the 
attempted  adjustment  of  the  difference  between  the  Governments  as  to 
the  Clarendon-Dallas  treaty  should  fail,  the  Clayton-Bulwer  treaty  re- 
mained to  fall  back  upon,  characterized  that  instrument  in  much  stronger 
terms  than  General  Cass  had  done.     To  quote  Lord  Napier's  words  : 

"  '  The  President  denounced  the  Clayton-Bulwer  treaty  as  one  which 
hss  been  fraught  with  misunderstanding  and  "mischief  from  the  begin- 
ning. It  was  concluded  under  the  most  opposite  constructions  by  the 
contracting  parties.  If  the  Senate  had  imagined  that  it  could  obtain 
the  interpretation  placed  upon  it  by  Great  Britain  it  would  not  have 
passed.  If  he  had  been  in  the  Senate  at  the  time,  that  treaty  never 
would  have  been  sanctioned.'  (Disijatch  of  Lord  Napier  to  the  Earl  of 
Clarendon,  May  6,  1854.) 

"  These  views  are  more  explicitly  and  formally  repeated  in  a  note  ad- 
dressed by  Secretary  Cass  to  Lord  Napier  on  the  29th  of  May,  1857. 
He  says : 

"  'The  Chyton-Bulwer  treaty,  concluded  in  the  hope  that  it  would  put 
an  end  to  the  ditierences  which  had  arisen  between  the  United  States 
and  Great  Britain  concerning  Central  American  affairs,  had  been  ren- 
dered inoperative  in  some  of  its  most  essential  x)rovisions  by  the  differ- 
ent constructions  which  had  been  reciprocally  given  to  it  by  the  parties. 
And  little  is  hazarded  in  saying  that  had  the  interpretation  since  put 
upon  the  treaty  by  the  British  Government,  and  yet  maintained,  been 
anticipated,  it  would  not  have  been  negotiated  under  the  instructions 
of  any  Executive  of  the  United  States  nor  ratified  by  the  branch  of  the 
Government  intrusted  with  the  power  of  ratification.' 

"The  publicity  of  these  statements,  and  the  strong  feeling  which 
tlicii  prevailed  in  all  quarters  tliat  tlie  Clayton-Bulwer  convention  was 
inadequate  to  reconcile  the  oi)posite  views  of  Great  Britain  and  the 

215 


150/]  TREATIES.  [chap.  VI. 


United  States  towards  Central  America,  led  to  a  very  decided  convic- 
tion that  the  treaty  should  be  abrogated.  Lord  Napier  reflected  this 
j^rowiun;  impression  when,  on  the  L*LM  of  June,  18r>7,  he  wrote  to  Lord 
Clarendon  that  'it  is  probable  that  if  the  pending  discussion  regard- 
ing Central  America  be  not  closed  during  the  present, summer,  an  at- 
tempt will  be  made  in  the  next  session  of  Congress  to  set  aside  the 
Clayton-Bulwer  treaty.  *  *  *  There  can  be  no  doubt  of  the  views 
of  the  President  and  Cabinet  on  this  matter.' 

"  Before  this  tendency  could,  however,  lind  its  expression  in  any  of- 
ficial act,  a  movement  on  the  part  of  Her  IVIajesty's  Government  placed 
the  whole  matter  in  a  new  aspect. 

[Here  follows  a  summary  of  Sir  W.  Ouseley's  action  substantiallj'  the 
same  as  that  given  above  by  Mr.  Cass.] 

"  The  situation,  then,  at  the  close  of  1857,  presented  a  triple  dead  lock. 

"The  United  States  had  agreed  not  to  move  toward  the  abrogation 
of  the  treaty  until  it  could  be  seen  what  interpretation  of  its  provisions 
would  result  from  Sir  William  Ouseley's  mission.  Sir  William  had  re- 
ceived positive  instructions  not  to  move  until  the  United  States  should 
decide  whether  to  abrogate  the  treaty  or  not,  and  Lord  Napier  was  for- 
bidden to  move  until  the  United  States  should  make  formal  answer  to 
the  proposal  for  arbitration.  The  instructions  of  Lord  Clarendon  to 
Lord  Napier,  January  22,  1858,  contained  these  words  : 

"  '  We  are  decidedly  of  opinion  that  it  would  neither  be  consistent 
with  our  dignity  or  our  interest  to  make  any  projwsal  to  the  United 
States  Government  until  we  have  received  a  formal  answer  to  our  for- 
mer ofier  of  arbitration.  In  event  of  the  offer  being  refused,  it  will  be 
a  great  and  hardly  justiliable  proof  of  the  spirit  of  conciliation  by  which 
we  are  animated  if  we  then  show  ourselves  disposed  to  abrogate  the 
Clayton-Bulwer  treaty ;  but  we  must  not  be  in  too  great  haste.' 

"  In  order,  api)areutly,  to  break  this  dead  lock,  Lord  Napier  wrote 
to  General  Cass,  February  17,  1858,  that  'something  in  the  nature  of 
an  alternative  was  thus  offered  to  the  American  Cabinet.  Should  the 
expedient  of  arbitration  be  adopted,  a  great  portion  of  Sir  William 
Ouseley's  duty  would  be  transferred  to  other  agencies.  Should  arbi- 
tration be  declined,  it  was  hoped  that  the  ettbrts  of  Her  Majesty's  en- 
voy would  result  in  a  settlement  agreeable  to  the  United  States,  inas- 
much as  in  essential  points  it  would  carry  the  treaty  of  1850  into 
operation  in  a  manner  practically  conformable  to  the  American  inter- 
pretation of  that  instrument.' 

"  On  the  10th  of  ]\rarch,  1858,  the  Earl  of  Malmesbury,  who  had  suc- 
ceeded Lord  Clarendon  in  the  foreign  office,  instructed  Lord  Napier 
that,  until  an  answer  was  returned  to  the  proposal  for  arbitration,  '  no 
further  steps  can  be  taken  by  Her  Majesty's  Government  with  that  of 
the  United  States  in  regard  to  that  matter  j'  and,  further,  that  'when 
this  point  is  cleared  up.  Her  Majesty's  Government,  supposing  that  the 
Government  of  the  United  States  decline  arbitration,  will  have  to  deter- 
21G 


CHAP. VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  I80O.    [§150/ 

mine  wlietlier  tbey  should  originate  a  proposal  for  the  abrogation  of 
the  Clayton-Bulwer  treaty  or  adopt  any  other  course  which  the  circum- 
stances at  the  moment  may  seem  to  recommend.' 

"  It  appears,  however,  that  the  proposal  to  abrogate  the  treaty  which 
Lord  Malmesbury  reserved  the  right  to  originate  had  already  been  com- 
municated to  the  Government  of  the  United  States  by  Lord  ]Napier, 
under  instructions  from  Lord  Clarendon.  In  a  dispatch  dated  March 
22,  1858,  Lord  Xapier  wrote : 

"  '  The  Earl  of  Clarendon  authorized  me  to  inform  General  Cass  that 
Her  Majesty's  Government  would  not  decline  the  consideration  of  a 
proposal  for  the  abrogation  of  the  treaty  by  mutual  concert.  *  *  * 
I  have,  accordingly,  on  two  occasions,  informed  General  Cass  that  if 
the  Government  of  the  United  States  be  still  of  the  same  mind,  and  con- 
tinue to  desire  the  abrogation  of  the  treaty  of  1850,  it  would  be  agreea- 
ble to  Her  Majesty's  Government  that  they  should  insert  a  proposal  to 
that  effect  in  their  reply  to  my  note  respecting  arbitration.' 

"  Lord  Napier  further  reports  in  detail  the  conversations  had  with 
General  Cass  as  to  the  most  proper  method  of  effecting  such  abroga- 
tion, if  agreed  to. 

"  In  reply  to  this  dispatch  of  Lord  Napier,  the  Earl  of  Malmesbury  in- 
structed him,  April  8, 1858,  that  his  action  was  approved,  and  that  he 
should  contine  himself  to  pressing  for  an  answer  to  his  proposal  for  ar- 
bitration.   His  lordship  added  these  significant  words  : 

"  '  Her  Majesty's  Government,  if  the  initiative  is  still  left  to  them  by 
the  unwillingness  of  the  United  States  themselves  to  propose  abroga- 
tion, desire  to  retain  full  liberty  as  to  the  manner  and  form  in  which  any 
such  proposal  shall  be  laid  on  their  behalf  before  the  Cabinet  at  Wash- 
ington. *  *  *  The  Clayton-Bulwer  treaty  has  been  a  source  of  un- 
ceasing embarrassment  to  this  country,  and  Her  Majesty's  Govern- 
ment, if  they  should  be  so  fortunate  as  to  extricate  themselves  from  the 
difiBculties  which  have  resulted  from  it,  will  not  involve  themselves,  di- 
recth'or  indirectly,  in  any  similar  difficulties  for  the  future.' 

"  The  answer  of  General  Cass  to  Lord  Napier's  several  proposals  was, 
briefly,  to  the  effect  that  pending  the  results  expected  from  Sir  William 
Ouseley's  mission  to  the  Central  American  States  the  United  States 
could  not  adopt  the  alternative  of  arbitration, '  even  if  it  had  not  been 
twice  rejected  before,'  and,  that  if  '  the  President  does  not  hasten  to 
consider  now  the  alternative  of  repealing  the  treaty  of  1850,  it  is  because 
he  does  not  wish  prematurely  to  anticipate  the  failure  of  Sir  William 
Ouseley's  mission,  and  is  disposed  to  give  a  new  proof  to  Her  Majesty's 
Government  of  his  sincere  desire  to  i)reserve  the  amicable  relations 
which  now  happily  subsist  between  the  two  countries.'  (General  Cass 
to  Lord  Xapier,  April  0,  1858.) 

"In  this  posture  of  affairs  the  Earl  of  Malmesbury  instructed  Sir 
William  Ouseley  too])en  direct  negotiations  with  the  Central  American 
States,  and  on  the  18th  of  August  instructed  Lord  Napier  to  inform  the 

217 


§  150/]  TRLATIKS.  [CIIAP.  VI. 

Government  of  the  United  States  of  the  intentions  and  object  of  Her 
Majesty's  GoveriiUient  in  the  premises.     His  lordship  added: 

" 'Modification,  arbitration,  and  abrog;ation  of  the  Claytou-Bnhver 
treaty  have  hvL'uJhitly  rejected  [the  italics  are  myownj.  Great  Britain 
and  Nicarajjna  are  now  about  to  treat  as  independent  states.' 

"1  have  emi>hasized  the  phrase  '  tiatly  rejected'  in  view  of  a  subse- 
quent instruction  of  the  Earl  of  Malmesbnry  to  Lord  Napier  on  the  8th 
of  December,  18.58,  wherein  he  said : 

"'I  think  you  would  have  done  better  if  you  had  not  too  pointedly 
broujrht  before  the  United  States  Government  the  notion  that  the  Brit- 
ish Government  mij^ht  view  with  favor  a  proposal  to  abrogate  the  Clay- 
ton Bulwer  treaty.' 

"  It  is  not  difficult,  in  following  this  narrative,  to  discern  that  General 
Cass,  though  not  desiring  to  express  it,  had  an  additional  motive  for 
declining  at  that  i)arti('u]ar  time  to  j)roi)ose  the  abrogation  of  the  Clay- 
ton-Bulwer  treaty.  Ue  did  not  desire  by  such  proposed  abrogation  to 
indicate  his  willingness  that  Sir  William  Gore  Ouseley  should  make 
treaties  with  the  sei)arate  States  of  Central  America,  unrestrained  by 
the  clauses  of  the  Clayton-Bulwer  treaty  inhibiting  the  extension  of 
British  ])ower  in  that  region.  General  Cass,  with  his  accustomed  cau- 
tion and  wisdom,  clearly  perceived  that  ior  the  United  States  to  propose 
abrogation  on  the  very  eve  of  Sir  William  Ouseley's  mission  would  lead 
to  injurious  inferences,  and  would  imply  conclusions  which  the  United 
States  was  not  prepared  to  admit. 

"  Objectionable  as  General  Cass  thought  the  Clayton-Bulwer  treaty, 
he  thought  it  was  better  than  giving  the  implied  consent  of  this  Gov- 
ernment that  Great  Britain  should  obtain  such  treaties  as  the  force  of 
her  ])Ower  might  secure  in  Central  America. 

"The  subsequent  note  of  Lord  Malmesbury,  not  strained  by  an  un- 
charitable construction,  throws  additional  light  on  the  subject,  and 
confirms  the  wisdom  of  General  Cass  in  declining  to  propose  abrogation 
at  that  time.  And,  besides.  General  Cass  evidently  desired  to  retain 
those  very  clauses  of  the  Clayton-Bulwer  treaty  to  which,  in  my 
dispatch  of  the  10th,  I  proposed  on  the  part  of  this  Government  to 
adhere. 

"  I  have  un-elt  with  somewhat  of  detail  on  this  particular  historic  epi- 
sode, partly  because  it  admirably  illustrates  the  spirit  with  which  both 
Governm€L:ts  have  regarded  the  Clayton-Bulwer  treaty  from  the  first, 
and  partly  because  it  had  more  direct  bearing  on  the  question  of  the 
guarantee  of  any  isthmian  transit  than  any  other  discussion  of  the  time. 
In  perusing  the  voluminous  correspondence,  unprinted  as  well  as  that 
printed  and  submitted  at  the  time  to  Congress  and  to  Parliament,  I  am 
more  than  ever  struck  by  the  elastic  character  of  the  Clayton-Bulwer 
treaty,  and  the  admirable  purpose  it  has  served  as  an  ultimate  recourse 
on  the  part  of  either  Government  to  check  apprehended  designs  in  Cen- 
tral America  on  the  part  of  the  other  j  although  all  the  while  it  was 
218 


CnAP.YI.]    GREAT  BRITAIN:  CLAYTOX-BULWER  TREATY,  1850.   [§150/ 

frankly  admitted  on  both  sides  that  the  engagements  of  the  treaty  were 
misuuderstaudingly  entered  into,  imperfectly  comprehended,  contradic- 
torily interpreted,  and  mutually  vexatious.     *     *     * 

"  My  main  object  in  writing  this  instruction  has  been  to  strengthen 
your  hands  in  any  discussion  which  may  now  ensue  as  to  the  benefits  of 
the  Clayton-Bulwer  treaty  and  the  mutual  interest  of  the  two  countries 
in  conserving  it  as  the  basis  of  a  settlement  of  all  disputes  between 
them  touching  Central  American  and  isthmian  questions.  It  will  be 
seen  that,  from  the  time  of  its  conclusion  in  1850  until  the  end  of  1858, 
its  provisions  were  thrice  made  the  basis  of  a  proposal  to  arbitrate  as 
to  their  meaning,  that  modification  and  abrogation  have  been  alike  con- 
tingently considered,  and  that  its  vexatious  and  imperfect  character 
has  been  repeatedly  recognized  on  both  sides.  The  present  proposal  of 
this  Government  is  to  free  it  from  those  embarrassing  features,  and  leave 
it,  as  its  framers  intei.ded  it  should"  be,  a  full  and  perfect  settlement,  for 
all  time,  of  all  possible  issues  between  the  United  States  and  Great 
Britain  with  regard  to  Central  America. 

"  If  in  your  conferences  with  Earl  Granville  it  should  seem  necessary, 
you  will  make  free  use  of  the  precedents  I  have  cited,  and  should  you, 
within  the  discretionary  limits  confided  at  the  end  of  my  Xo.  270,  have 
given  a  copy  thereof  to  his  lordship,  you  are  equally  at  liberty  to  let 
him  have  a  copy  of  this  also,  with  the  same  explauation,  that  it  is  for 
your  use,  and  not  written  as  a  formal  note  for  communication  to  Her 
Majesty's  Government." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lowell,  Nov.  29,  1881.     MSS.  Inst.  Gr.  Brit.; 
For.  Rel.,  1881. 

"  Mr.  Sackville  West  has  handed  me  copies  of  two  dispatches -from 
Lord  Granville  to  him  respecting  the  Clayton-Bulwer  treaty;  the  first, 
dated  7th  January  last,  comments  npon  Mr.  Blaine's  270  of  the  19th  of 
November;  the  second,  of  the  17th  January,  comments  upon  Mr. 
Blaine's  281  of  the  29th  November. 

"  They  have  been  read  with  interest  and  with  attention.  After  care- 
ful consideration,  the  President  is  not  without  hope  that  the  views  of 
the  two  Governments  may  be  harmonized  in  this  matter.  He  therefore 
directs  me  to  communicate  to  you,  somewhat  at  length,  the  opinions 
entertained  here  respecting  the  traditional  continental  policy  of  the 
United  States  and  the  Clayton-Bulwer  treaty. 

"  A  canal  across  the  Isthmus  for  vessels  of  all  dimensions  and  every 
character,  under  possible  conditions  hereinafter  referred  to,  would  affeot 
tjjis  Kepublic  in  its  trade  and  commerce ;  would  expose  our  Western 
coast  to  attack ;  destroy  our  isolation ;  oblige  us  to  imi)rove  our  defenses 
and  to  increase  our  Navy,  and  possibly  comi)el  us,  contrary  to  our  tra- 
ditions, to  take  an  active  interest  in  the  aifairs  of  ICuropean  nations. 
The  United  States,  with  their  large  and  inctrcasing  population  and 
wealth,  cannot  be  uninterested  in  a  change  in  llic  piiysical  conronnatiou 

219 


§  150/]  TREATIES.  [chap.  VI. 

of  this  hoiuisplic'ie  ^^ilich  may  injiiriously  afl'ect  either  the  material  or 
political  interests  of  the  Republic,  and  naturally  seek  that  the  severance 
of  the  Isthmus  connectinff  the  continents  shall  be  effected  in  harmony 
with  those  interests.  This  Government,  while  believing  that  the  Isth- 
mus should  not  be  severed  so  as  to  do  unnecessary  injury  to  the  United 
States,  at  the  same  time  appreciates  the  desire  of  Great  Britain  that 
she  should  be  able,  by  a  short  and  easy  passage  from  ocean  to  ocean,  to 
reach  her  eastern  and  American  possessions  on  the  Pacific,  and  that 
other  nations  of  the  world  have  a  similar  interest  in  such  a  passage. 
There  is,  however,  no  necessary  conflict  between  the  political  claims  of 
the  United  States  in  this  matter  and  the  material  interests  of  other 
nations, 

"A  canal  across  the  Isthmus  can  be  created,  and  under  the  protector- 
ate of  the  Unito<l  States  and  the  Republic  whose  territory  it  may  cross 
can  be  freely  used  by  all  nations;  thus  in  some  degree  would  be  con- 
tinued to  the  United  States  the  benefit  of  that  conformation  of  the  earth 
which  is  now  an  element  of  security  and  defense.     *     *     * 

"  The  President  believes  that  the  formation  of  a  protectorate  by  Euro- 
pean nations  over  the  isthmus  transit  would  be  in  conflict  with  a  doc- 
trine which  has  been  for  many  years  asserted  by  the  United  States. 
This  sentiment  is  properly  termed  a  doctrine,  as  it  has  no  prescribed 
sanction  and  its  assertion  is  left  to  the  exigency  which  may  invoke  it. 
It  has  been  repeatedly  announced  by  the  executive  department  of  tliis 
Government,  and  through  the  utterances  of  distinguished  citizens;  it 
is  cherished  by  the  American  people,  and  has  been  approved  by  the 
Government  of  Great  Britain. 

"It  is  not  the  inhospitable  principle  which  it  is  sometimes  charged 
with  being  and  which  asserts  that  European  nations  shall  not  retain 
dominion  on  this  hemisphere  and  that  none  but  republican  governments 
shall  here  be  tolerated ;  for  we  well  know  that  a  large  part  of  the 
North  American  continent  is  under  the  dominion  of  Her  Majesty's 
Government,  and  that  the  United  States  were  in  the  past  the  first  to 
recognize  the  imperial  authority  of  Dom  Pedro  in  Brazil  and  of  Itur- 
bide  in  Mexico.  It  is  not  necessary  now  to  define  that  doctrine,  but  its 
history  clearly  shows  that  it  at  least  opposes  any  intervention  by  Euro- 
pean nations  in  the  political  affairs  of  American  Kepublics.     *     *     * 

"  We  are  thus  fairly  brought  to  the  consideration  of  the  Clayton- 
Bulwer  treaty. 

"  The  treaty  relates  to  communication  between  the  oceans,  and  di- 
vides itself  into  two  parts : 

"First,  and  principally,  that  which  the  treaty  terms  a 'particular 
object,'  to  wit,  a  then  projected  interoceanic  canal  in  Central  America 
by  the  Nicaragua  route;  and  this  is  the  only  object  stated  in  the  i>re- 
amble  of  the  treatj',  which  says  that  the  two  Governments,  'being  de- 
sirous of  consolidating  the  relations  of  amity  which  so  happily  subsist 
between  them,  by  setting  forth  and  fixing  in  n  convention  tluMr  views 

220 


CHAP.VI.]   GREAT  BEITAIN:  CLAYTON-BULWER  TREATY,  1850.   [§150/ 

and  inteutions  with  reference  to  any  means  of  communication  by  sbip- 
canal  which  may  be  constructed  between  the  Atlantic  and  Pacitic 
Oceans  by  the. way  of  the  river  San  Juan  de  Nicaragua  and  either  or 
both  of  the  lakes  of  jSTicaragua  or  Managua  to  any  jjort  or  i)lace  on  the 
Pacific  Ocean,'  to  that  end  confer  full  j)owers  on  Mr.  Clayton  and  Sir 
Henry  Bulwer. 

"  This  first  and  i^rincipal  object  of  the  treaty  is  considered  in  the  first 
seven  articles. 

"  Second.  The  subordinate  object  of  the  treaty  is  that  treated  of  in 
i;he  remaining  or  eighth  article,  which  states  that  the  two  Governments 
'  having  not  onl}-  desired,  in  entering  into  this  convention,  to  accom- 
plish a  ^jarftcwZar  o&/ec#,  but  also  to  establish  a  general  principle  (and 
this  is  the  principle),  hereby  agree  to  extend  their  protection  by  treaty 
stipulation  to  any  other  practicable  communication  '  across  the  Isthmus, 
'and  especially  to  the  interoceanic  communications,  should  the  same 
prove  practicable,  whether  by  canal  or  ra  ilroad,  which  are  now  proposed 
to  be  established  by  the  way  of  Tehuantepec  or  Panama.'  This  '  gen- 
eral principle'  or  joint  protection  is  to  be  effected  as  stated,  ' by  treaty 
stipulations.' 

"Although  this  discussion  relates  to  a  canal  by  the  Panama  route 
outside  of  Central  America,  to  which  the  eighth  article  refers,  yet  your 
attention  is  invited  as  well  to  the  first  and  principal  as  to  the  second 
and  subordinate  pur^^ose  of  the  treaty. 

•'  First.  While  the  primary  object  of  the  treaty,  as  will  be  seen,  was 
to  aid  the  immediate  construction  of  a  canal  by  what  is  known  as  the 
Nicaragua  route,  it  is  equally  plain  that  another  and  important  object, 
which  the  United  States  had  in  view,  was  to  dispossess  Great  Britain 
of  settlements  in  Central  America,  whether  under  cover  of  Indian  sov- 
ereignty or  otherwise.  The  United  States  were  tenacious  that  Great 
Britain  should  not  extend  further  her  occupation  of  threatening  military 
or  naval  strategic  points  along  their  maritime  frontier.  To  assure  this, 
the  parties  to  the  treaty  jointh^  agreed  not  to  exercise  dominion  over, 
or  fortify  or  colonize  Nicaragua,  Costa  Eica,  the  Mosquito  coast,  or  any 
part  of  Central  America.  Great  Britain,  however,  exercises  dominion 
over  Belize  or  British  Honduras,  the  area  of  which  is  equal  to  that  of 
Massachusetts,  Connecticut,  and  Rhode  Island,  and  the  impression 
prevails  that  since  the  conclusion  of  the  treaty  of  1850,  the  English 
inhabitants  of  that  district  have  spread  into  the  territory  of  the  neigh- 
boring Republics  and  now  occupy  a  large  area  of  land  which,  under  the 
convention,  belongs  to  one  or  the  other  of  the  two  Republics,  but  over 
which  the  Government  of  Her  Majesty  assumes  to  exercise  control. 

"  Such  dominion  seems  to  be  inconsistent  with  that  provision  of  the 
treaty  wliiiili  ])rohil)its  the  exercise  of  dominion  by  Great  Britain  over 
any  part  of  Central  America.  This  makes  it  proper  for  me  to  say  that 
the  Ivnglish  privileges,  at  the  time;  of  the  conclusion  of  the  Clayton- 
J>ulwer  treaty,  in  what  has  been  known  as  the  Belize,  were  confined  tv 

L'2l 


§  150/]  TREATIES.  [CHAr.  VI. 

a  right  to  cut  wood  and  establish  saw-mills  in  a  territory  defined  by 
metes  and  bounds.  These  privileges  were  conferred  by  treaties,  in 
which  Spanish  sovereignty  was  recognized.  On  the  successfnl  revolu- 
tion, the  rights  of  Spain  vested  in  the  new  Republics,  and  had  not  been 
materially  changed  when  the  Chiyton-Bulwer  treaty  was  concluded. 
That  treaty  was  concluded  April  10,  and  its  ratification  advised  by  the 
Senate  May  2'J,  1850.  On  the  exchange  of  the  ratilications,  Sir  Henry 
Bulwer  filed  in  this  Department,  under  date  of  June  29,  1850,  a  declara- 
tion that  the  exchange  was  made  with  the  understanding  on  the  part  of 
Her  ^Majesty's  Government  that  the  treaty  did  not  api)]y  to  her  Majesty's 
settlement  at  Ilonduras  and  its  de|)endeucies.  Mr.  Clayton  answered, 
under  date  of  July  4,  1850,  that  he  so  understood^  but  that  he  must  not 
be  understood  to  either  alfirm  or  deny  British  title  therein.  It  is  to  be 
observed  that  each  of  these  declarations  was  made  after  the  conclusion 
of  the  treaty  by  the  joint  action  of  the  President  and  the  Senate,  and 
that  the  declaration  was  not  made  to  or  accepted  by  them.  In  1859, 
Great  Britain  entered  into  a  treaty  with  Guatemala,  in  which  what 
had  been  called  the  settlement  in  the  declaration  made  ou  the  exchange 
of  the  ratification  of  the  Claytou-Bulwer  treaty  was  styled  '  Her  Bri- 
tannic Majesty's  settlement  and  possessions.' 

"  In  the  treaty  with  Guatemala  the  boundaries  were  defined,  and  it 
was  agreed  that  all  on  one  side  of  the  defined  boundaries  '  belongs  to 
Her  Britannic  IMajesty.'  It  is  further  understood  that  when  the  commis- 
sioners met  to  mark  the  boundary  in  accordance  with  the  agreement,  it 
was  found  that  the  subjects  of  Great  Britain  had  occupied  so  much 
more  of  Guatemala  than  was  supposed  that  the  commissioner  on  the 
l^art  of  Her  IMajesty's  Government  relused  to  proceed,  and  this  large 
area  of  land  has  since  remained  practically  in  the  possession  of  Great 
Britain. 

'•  The  United  States  have  never  given  their  assent  to  this  conversion 
of  the  British  'settlement' in  Central  America  under  Spanish-Ameri- 
can sovereignty  into  a  British 'possession '  with  British  sovereignty. 
There  is  a  vast  difference  between  a  settlement  subject  to  the  sover- 
eignty of  the  Central  American  Eepublic  and  a  colony  controlled  by 
Great  Britain. 

"  Under  the  treaty  of  1850,  while  it  is  binding,  the  United  States 
have  not  the  right  to  exercise  dominion  over  or  to  colonize  one  foot  of 
territory  in  Central  America.  Great  Britain  is  nnder  the  same  rigid 
restriction.  And  if  Great  Britain  has  violated  and  continues  to  violate 
that  provision,  the  treaty  is,  of  course,  voidable  at  the  pleasure  of  the 
United  States. 

"Again,  it  is  well  known  that  the  parties  to  the  Clayton-Bulwer 
treaty  anticipated  that  a  canal  by  the  ISTicaragua  route  was  to  be  at 
once  commenced.  Under  the  assumption  of  a  i)rotectorate  of  Mos- 
quito, British  authority  was  at  that  time  in  actual  and  visible  occupa- 
tion of  one  end  of  the  2:^icaragua  route,  whether  with  or  without  title 
222 


CHAP.  VI.]   GBEAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.   [§150/ 

is  not  now  material,  and  it  was  intended  by  this  treaty  to  dispossess 
Great  Britain  of  this  occupation.  This  object  was  accomplished  ia  1859 
and  18G0  by  treaties  between  Great  Britain,  Guatemala,  Honduras, 
and  Nicaragua,  referred  to  in  Lord  Granville's  dispatch  of  January  14, 
1882.  It  was  to  this  adjustment,  which  was  one  of  the  prime  objects 
of  the  treaty,  and  not  to  the  colonization  of  British  Honduras  that  Mr. 
Buchanan  in  his  message  of  December  3,  18G0,  alludes  as  'an  amicable 
and  honorable  adjustment  of  dangerous  qnestions  arising  from  the 
Clayton-Bulwer  treaty.' 

"  When  the  Olayton-Bulwer  treaty  was  concluded  it  was  contem- 
plated that  the  Nicaragua  Canal,  to  which  the  treaty  principally  had 
relation,  would  be  at  once  commenced  and  finished  with  all  possible 
speed  by  American  and  British  capital  under  the  impulse  of  the  joint 
protectorate.  This  appears  not  only  from  the  context  of  the  treaty, 
but  also  from  tiie  history  of  the  negotiations  whicli  led  to  the  treaty, 
and  the  relations  which  then  existed  between  this  Government  and  the 
Central  American  States. 

"On  December  12,  1846,  New  Granada,  by  a  treaty  of  commerce,  in 
consideration  of  certain  guarantees,  made  the  United  States  valuable 
grants  relating  to  the  Panama  route,  to  which  your  attention  will  be 
directed  when  we  consider  the  rights  of  this  Eepublic  in  relation  to  the 
Panama  route. 

"The  discovery  of  gold  in  California  soon  made  it  important  to  find 
some  rapid  way  of  reaching  it.  ]S"otwith standing  the  progress  of  the 
Panama  Railroad  scheme,  public  feeling  was  running  strongly  in  favor 
of  a  ship-canal  large  enough  to  accommodate  ocean  steamships.  Influ- 
enced by  this  strong  feeling  the  minister  of  the  United  States  in  Nica- 
ragua, without  instructions,  negotiated  a  treaty  with  that  Republic, 
which  conferred  upon  certain  citizens  of  the  United  States  the  valua- 
ble right  to  construct  a  ship-canal  from  San  Juan  on  the  Atlantic  coast 
to  the  Pacific.  Nicaragua  claimed  sovereignty  over  the  whole  of  the 
Hue  of  the  i^roposed  canal,  while  Great  Britain,  as  I  have  shown, 
claimed  sovereignty  over  a  portion  of  it  occupied  by  the  Mosquito 
Indians. 

"At  the  time  of  the  concession  by  Nicaragua  it  would  have  been  im- 
possible to  procure  in  the  United  States  the  capital  necessary  for  the 
construction  of  a  ship-canal  from  the  Atlantic  to  the  Pacific. 

"  Hence  it  was  that  when  Mr.  Clayton  learned  of  the  concession,  he 
at  once  informed  Mr.  Crampton,  the  British  minister,  saying  that  the 
United  States  did  not  propose  to  avail  themselves  exclusively  of  these 
privileges,  but  wished  a  canal  constructed,  and  that  the  claim  of  Great 
Britain  on  behalf  of  the  Mosquito  Indians,  which  the  United  States 
could  not  admit,  stood  in  the  way.  The  Government  of  the  United 
States,  Mr.  Chiyton  sai<l,  was  i)er.suaded  that  Mhese  considerations, 
if  fairly  laid  b(!fore  Her  .Majesty's  Goveiiimcnt,  would  indiu-c  Ilcr 
Majesty's  Governinent  to  make  such  an  aiTangement  with  regard  to 

233 


§  150/]  TREATIES.  [chap.  VI. 

the  Mosquito  lmli;ni8  us  would  prevent  its  beiiij;'  au  obstacle  to  the 
desijru  ill  question.' 

"  President  Taylor  Avas  i)resent  at  tlie  interview,  and  'eordially  con- 
curred.' ]\lr.  Cranii)ton  lejwrted  the  conversation  to  Lord  Palmerston 
the  1st  October,  and  on  the  15th  of  the  same  nioiitli  transmitted  to  him 
a  (•oi)y  of  the  concession  by  Xicarajiua  to  the  American  company.  The 
L'lid  Xovemlx'r  ^Ir.  Abbott  Lawrence  ollicially  inlbrmed  Lord  Palmer- 
ston that  an  Aincrican  company,  aided  by  the  subscription  of  a  large 
amount  of  Ibitish  c;ii)ital,  had  be.uim  to  construct  the  Panama  Pailroad, 
and  had  coiiii)leted  the  contracts  for  iron  for  it.  IJe  transmitted  to  l>ord 
Palmerston  a  copy  of  the  guarantee  in  the  treaty  of  1840  with  New 
Granada,  and  invited  Great  Britain  to  join  in  the  guarantee.  In  the 
same  note  he  ac(]nainted  her  Majesty's  Government  with  the  concession 
from  jSicaragua  to  the  American  canal  company,  and  said  that  the  con- 
flicting claims  as  to  Mosquito  threw  an  obstacle  in  the  way  of  the  work, 
and  invited  a  conversation  on  the  subject.  It  seems  that  several  con- 
versations were  had,  since  on  the  14th  of  the  following  December  Mr. 
Lawrence  addressed  a  formal  note  to  Lord  Palmerston,  in  which,  after 
referring  to  them  and  again  setting  forth  the  concessions  for  the  Panama 
Eailroad  and  the  Nicaragua  Canal,  and  stating  that  the  United  States 
had  'disclaimed  all  intention  to  settle,  annex,  colonize,  or  fortify  the 
territory  of  Central  America,  which  declaration  had  been  met  by  a 
similar  disclaimer  on  the  part  of  Great  Britain,' and  also  that  Her 
Majesty's  Government  'had  intimated  their  willingness  to  join  with  the 
United  States  in  their  guarantee  of  neutrality,'  he  asked,  in  substance, 
1st.  Whether  Great  Britain  would  enter  into  a  treaty  with  Nicaragua 
similar  to  that  negotiated  by  the  United  States'?  2d.  Whether  Great 
Britain  would  enter  into  a  treaty  with  New  Granada  guaranteeing  the 
neutrality  of  the  railway  then  under  construction?  3d.  Whether  the 
obstruction  of  the  Mosquito  protectorate  would  be  removed  ?  This  note 
was  never  answered  formally  in  London,  but  negotiations  were  trans- 
ferred to  Washington. 

"Meantime,  and  in  the  autumn  of  1849,  Sir  Henry  Bulwer  had  suc- 
ceeded Mr.  Crampton  in  Washington,  and,  soon  after  his  arrival,  com- 
menced negotiations  with  IMr.  Clayton  for  a  treaty  for  the  protection  of 
a  canal. 

"On  the  Gth  of  January,  1850,  Sir  Henry  Bulwer  wrote  to  Lord  Pal- 
merston, saying : 

"'Your  lordship  is  aware  that  the  main  interest  of  the  United  States 
in  this  matter  has  arisen  from  its  uewij- acquired  possession  in  the  Pacific, 
and  the  project  of  an  American  company  to  form  a  w'ater  communica- 
tion between  the  two  oceans,  passing  through  the  lake  of  Nicaragua 
and  the  river  San  Juan ;  this  company  having  obtained  from  the  State 
of  Nicaragua  the  use  of  its  lakes  and  territory  for  this  ])urpose,  and  the 
use  also  of  the  river  San  Juan,  to  which  Nicaragua  lays  claim.  *  »  • 
But  it  so  hapi)ens  that  while  it  is  very  diflicult,  not  to  say  impossible, 
224 


CHAP.  VI.]  GEEAT  BRITAIN :  CLAYT0X-BULWT:R  TREATY,  1850.    [§150/ 

for  Her  Majesty's  Goverument  to  listen  to  those  claims  of  Nicaragua, 
our  decision  with  respect  to  which  has  been  already  oi^euly  taken,  there 
is  no  ditficulty,  I  believe,  whatsoever  in  her  Majesty's  Government  as- 
sisting the  United  States  in  its  general  views  with  respect  to  that  water 
communication  across  Central  America,  which  Great  Britain  must  be 
almost  as  desirous  as  the  United  States  to  see  established.  *  *  * 
I  am  disposed  to  think  that  the  best  way  of  doing  this  is  by  a  conven- 
tion between  Great  Britain  and  the  United  States.' 

"Negotiations  conducted  on  this  basis  progressed  so  rapidly  that  on 
the  3d  February,  1850,  Sir  Henry  Bulwer  was  able  to  transmit  for  Lord 
Palmerston's  criticism  the  full  project  of  a  treaty.     *     *    * 

"  The  Clayton-Bulwer  treaty  was  concluded  on  the  19th  of  the  follow- 
ing April,  and  I  think  it  will  not  be  denied  that  the  object  which  Presi- 
dent Taylor,  Mr.  Clayton,  Sir  Henry  Bulwer,  and  Lord  Palmerston  had 
in  view  in  making  it  was  primarily  and  mainly  this :  To  insure  at  the 
earliest  possible  moment  the  completion  of  the  particular  ship  canal  for 
which  a  concession  had  been  made  by  Nicaragua  to  citizens  of  the  United 
States  ou  the  29th  August,  1849;  all  the  interviews  of  which  accounts 
remain  and  all  the  corresi)ondence  relate  to  this  particular  canal  and  to 
no  other.  As  if  to  make  assurance  doubly  sure,  the  project  of  a  treaty 
which  Sir  Henry  Bulwer  sent  to  Lord  Palmerston  the  3d  of  February, 
being  found  doubtful  or  insufiicient  in  this  respect,  was  so  amended 
between  that  time  and  the  19th  April  as  to  make  it  practically  certain 
that  that  grant  would  be  accepted  by  both  Governments  as  the  one 
covered  by  the  treaty. 

"It  was  to  this  particular  canal  that  were  to  be  applied  all  the  pro- 
visions of  the  first  article  in  the  treaty  relating  to  the  fortification  of 
the  canal,  the  control  over  it,  and  exclusive  advantage  in  it;  of  the 
second  article,  relating  to  blockade,  detention  or  capture;  of  the  third 
and  fourth  articles,  relating  to  protection  during  construction  and  to 
free  ports ;  of  the  fifth  article,  in  regard  to  a  guarantee  of  neutrality ;  of 
the  sixth  article,  with  regard  to  treaties  with  other  States,  and  the  use 
of  the  good  offices  of  the  high  contracting  parties;  and  of  the  seventh 
article,  as  already  noticed;  but  if  under  the  provision  of  the  seventh 
article  the  claims  of  the  holders  of  this  particular  concession  should  be 
set  aside,  then  each  Government  reserved  to  itself  the  right  to  determine 
whether  its  interests  required  it  to  ailbrd  protection  to  the  holders  of 
any  other  concession. 

"  The  two  Governments  did,  however,  subsequently  come  to  a  harmo- 
nious agreement  with  regard  to  the  grant  by  Nicaragua,  the  one  con- 
templated by  the  treaty.     *     *     * 

"It  was  also  agreed  in  the  treaty  that  the  parties  should  invite  other 
States  to  enter  into  similar  stipulation,  to  the  end  that  they  might  share 
in  the  -honor  and  advantag<^  of  having  contributed  to  a  work  of  such 
general  interest  and  importance  as  th(i  canal  herein  contcnqjlatcd,'  to 
wit,  that  by  the  Nicaragua  route, 

S.  Mis.  IDL'— VOL.  II 15  -^^ 


§  150/]  TREATIES.  [chap.  VI. 

"It  is  to  be  observed  that  if  other  uatioDS  were  to  become  parties  to 
the  enterprise  it  was  only  ou  the  joint  invitation  of  both  the  United 
States  and  Great  Britain;  but  the  President  rej;ards  the  provision  as 
hipsed  by  the  faihire  to  construct  the  canal  to  which  it  referred,  and  by 
the  fact,  before  stated,  that  exi)erienee  has  shown  that  no  joint  protec- 
torate  for  any  canal  across  the  Isthmus  is  requisite.  The  canal,  however, 
now  in  question  is  on  the  Panama  and  not  on  the  Nicaragua  route. 

"■  The  remaining-  subject  of  the  treaty  is  contained  in  the  eighth  article, 
which  relates  to  a  canal  or  railway  across  the  Isthmus  other  than  by 
the  Nicaragua  route,  as  by  way  of  Tehuautepec  or  Panama,  and  it  is 
this  provision  of  the  treaty  which  has  occasioned  this  correspondence. 
The  article  provides  as  follows: 

" '  The  Governments  of  the  United  States  and  GreatBritain  having  not 
only  desired,  in  entering  into  this  convention,  to  accomplish  a  i)arlwular 
ohject  [to  wit,  the  Nicaragua  Canal,  which,  at  the  date  of  the  treaty,  it 
was  thought  was  about  to  be  constructed],  but  also  to  establish  a  gen- 
eral principle,  they  hereby  agree  to  extend  their  ])rotection,  by  treaty 
stipidations,  to  any  other  communications,  whether  by  canal  or  railway, 
across  the  Isthmus  which  connects  North  and  South  America,  and 
especially  to  the  iuteroceanic  communications,  should  the  same  prove 
to  be  practicable,  whether  by  canal  or  railway,  which  are  now  proposed 
to  be  established  by  the  way  of  Tehuautepec  or  Panama.' 

"It  is  to  be  here  observed  that  the  Government  of  the  United  States 
has  a  treaty  with  New  Grauad;),,  now  a  part  of  the  United  States  of 
Colombia,  entered  into  in  1846,  by  which  free  transit  is  guaranteed  to 
the  citizens  of  the  United  States  across  the  Isthmus  of  Panama  ui)()n 
any  mode  of  communication  that  may  be  constructed,  subject  to  no 
duties  or  burdens  but  such  as  may  be  imposed  upon  citizens  of  New 
Granada;  and  by  which,  in  order  to  secure  the  tranquil  and  constant 
enjoyment  of  these  advantages,  the  United  States  guaranteed,  posi- 
tively and  efficaciously,  the  perfect  neutrality  of  the  Isthmus,  with  the 
view  that  free  transit  from  sea  to  sea  might  not  be  interrupted  or  em- 
barrassed, and  also  guaranteed  the  rights  of  sovereignty  and  property 
which  New  Granada  (now  the  United  States  of  Colombia)  had  and 
possesses  over  said  territory. 

"  By  this  treaty  with  New  Granada  the  United  States  claim  to  occupy 
a  peculiar  relation  to  the  means  of  transit  by  railroad  or  canal  across 
the  Isthmus,  within  the  territories  of  the  United  States  of  Colombia,  a 
relation  which  cannot  justly  be  superseded  by  the  intervention  of  other 
states  without  the  consent  of  the  United  States,  duly  and  properly 
obtained.  A  protectorate  of  this  kind  is,  like  government,  necessarily 
exclusive  in  its  character,  and  implies  a  right  and  duty  to  make  it 
effective.  There  may  be  a  joint  protectorate  engaged  in  by  mutual 
convention  of  different  states,  but  the  protectorate  itself  must  be  a 
unit.  The  treaty  with  New  Granada  of  184G  still  remains  in  full  force. 
If  Great  Britain  should  desire  to  be  united  with  the  Government  of  the 
22G 


CHAP.  VI.]  GREAT  BEITAIN:  CLAYTON-BULWEE  TREATY,  1850.  [§150/ 

United  States  iu  that  guarantee,  of  course  it  would  require  the  consent 
of  the  United  States  of  Colombia  and  of  this  Government,  and  a  con- 
vention to  that  end,  the  terms  of  which  should  be  made  agreeable  to 
the  parties. 

''Article  VIII  of  the  Clayton-Bulwer  treaty  relates  only  to  those  pro- 
jects now  [1850]  proposed  to  be  established ;  and  expressly  contemplates 
some  further  '  treatj'  stipulation  '  on  the  part  of  Great  Britain  with  the 
United  States  of  America  and  New  Granada,  now  the  United  States  of 
Colombia,  before  Great  Britain  can  join  the  United  States  iu  the  pro- 
tectorate of  the  canal  or  railway  by  the  Panama  route.  No  such  treaty 
stipulation  has  been  made  or  has  been  proposed  bj'  Great  Britain. 
Since  the  ratification  of  the  Clayton-Bulwer  treaty,  for  thirty  years  the 
United  States,  under  the  treaty  of  184G  with  New  Granada,  has  ex- 
tended protection  to  the  transit  from  sea  to  sea  by  the  Panama  Eailway. 

"  Should  Her  Majesty's  Government,  after  obtaining  the  consent 
thereto  of  the  United  States  of  Colombia,  claim,  under  the  Clayton- 
Bulwer  treaty,  the  right  to  join  the  United  States  in  the  protection  of  the 
existing  Panama  Eailwaj',  or  any  future  Panama  canal,  the  United  States 
would  submit  that  experience  has  shown  that  no  such  joint  protect- 
orate is  requisite;  that  the  Clayton-Bulwer  treaty  is  subject  to  the  pro- 
visions of  the  treaty  of  1846  with  New  Granada,  while  it  exists,  which 
treaty  obliges  the  United  States  to  afford,  and  secures  to  it  the  sole 
protectorate  of  any  transit  by  the  Panama  route;  and  if  Great  Britain 
still  claimed  the  right  to  join  in  the  protectorate  the  United  States 
would  then  determine  whether  the  '  treaty  stipulations'  proposed  by 
Great  Britain  regulating  that  joint  protectorate  were  just;  and,  if  so, 
whether  the  length  of  time  during  which  Great  Britain  has  concurred 
in  the  protection  of  the  Panama  route  under  the  treaty  with  New 
Granada  has  or  has  not  relieved  the  United  States  from  any  obligation 
to  accept  a  proposal  from  that  Government  to  join  in  the  guarantee. 

"  I  may  then  state  the  President's  views  on  the  whole  subject,  which  I 
do  with  an  assurance  that  they  will  meet  with  a  candid  consideration 
from  Lord  Granville,  and  with  the  hope  thattliey  may  be  substantially 
concurred  iu  by  Her  Majesty's  Government. 

"The  Clayton-Buhver  treaty  was  concluded  to  secure  a  thing  which 
did  not  exist,  and  which  now  never  can  exist.  It  was  to  secure  the 
construction  of  a  canal  under  the  grant  of  1849  from  Nicaragua  that 
the  United  States  consented  to  waive  the  exclusive  and  valuable  rights 
which  liave  been  given  to  them  ;  that  they  consented  to  agree  with  Great 
Britain  that  they  would  not  occup}',  fortify,  colonize,  or  assume  dominion 
over  any  part  of  Central  America;  and  that  they  consented  to  admit 
IJer  Majesty's  Government  at  some  future  day  to  a  share  in  the  pro- 
tection which  they  have  exercised  over  the  Isthmus  of  Panama. 

"The  (iovcrnment  and  peoi)le  of  the  United  States,  though  rich  in 
land  and  industry,  were  poor  in  money  and  floating  capital  in  1830. 
The  scheme  for  a  canal,  even  without  the  comi)licationH  of  the  Mosquito 

'>'>7 


§  150/]  TREATIES.  [chap.  VI. 

l)rotectoiate,  was  too  vast  lor  tlie  means  of  the  Americaus  of  that  day, 
who  numbered  then  considei ably  less  than  one-half  of  their  numbers 
to-day.  They  went  to  J'2n<;land,  whieh  had  what  they  had  not,  surreu- 
dered  their  exclusive  privileges,  otlered  an  e(jiial  share  of  all  they  had 
iu  those  regions  in  order,  as  expressed  in  the  seventh  article  of  the 
treaty,  'that  no  time  should  be  unne(;essarily  lost  in  commencing  and 
constructing  the  said  canal.'  Through  no  fault  of  theirs  time  was  un- 
necessarily lost,  the  work  was  never  begun,  and  the  concession  failed. 

"  The  President  does  not  think  that  the  United  States  are  called  ui)on 
by  any  i)rinciple  of  equity  to  revive  those  i)rovisi()ns  of  the  Clayton  JJul- 
wer  treaty  which  were  especially  api)licable  to  the  coiu-ession  of  August, 
184!),  and  api)ly  them  to  any  other  concession  which  has  been  since 
or  may  hereafter  be  maile.  The  conditions  of  1S82  are  not  those  of  1852. 
The  peojjle  of  the  United  States  have  now  abundance  of  sur])lus  capital 
lor  such  euterpri.ses,  and  have  no  need  to  call  ui)on  foreign  cai)italists. 
The  legislative  branch  of  the  Goverumeut  of  the  United  States  may  also 
desire  to  be  free  to  place  the  credit  of  the  United  States  at  the  service 
of  one  or  more  of  these  enterprises.  The  President  does  not  feel  him- 
self warranted  iu  making  any  engagement  or  any  admission  respecting 
the  extinct  provisions  of  the  Claytou-Bulwer  treaty  which  would  pre- 
vent or  interfere  with  such  a  purpose.  On  the  contrary,  frajikness  re- 
quires him  to  say  that  as  the  persons  who  held  the  grant  which  the 
United  States  understood  to  be  accepted  by  the  two  Governments  under 
the  i)rovi.sions  of  the  treaty  have  not  'carried  out  the  proposed  enter- 
prise,' the  United  States  esteem  themselves  competent  to  refuse  to  aflbrd 
their  protection  jointly  with  Great  Britain  to  any  other  i)ersons  or  com- 
pany, and  hold  themselves  free  hereafter  to  protect  any  interoceanic 
communication  iu  which  they  or  their  citizens  may  become  interested 
in  such  way  as  treaties  with  the  local  sovereign  powers  may  warrant 
and  their  interests  may  require. 

"There  are  some  provisions  of  the  treaty  which  the  President  thought 
might  be  advantageously  retained.  With  this  purpose  the  present  cor- 
respondence was  opened  by  the  note  to  you  of  the  10th  November  last, 
in  which  these  points  were  indicated.  The  President  is  still  ready  on 
the  part  of  the  United  States  to  agree  that  the  reciprocal  engagements 
respecting  the  acquisition  of  territory  iu  Central  America,  and  re- 
specting the  establishment  of  a  free  i)ort  at  each  end  of  whatever 
canal  may  be  constructed,  shall  continue  iu  force,  and  to  define  by 
agreement  the  distance  from  either  end  of  the  canal  where  captures 
may  be  made  by  a  belligerent  in  time  of  war,  and  with  this  definition 
thus  made  to  keep  alive  the  second  article  of  the  treaty.  He  hoi)es 
that  Lord  Granville  on  further  consideration  may  not  be  averse  to  re- 
vising his  o])iuion  that  such  agreements  would  not  be  beneficial. 

"To  the  suggestion  made  by  Lord  Granville,  at  the  close  of  this  note 
of  Jauuary  7,  that  the  United  States  should  take  the  initiative  in  an 
invitation  to  other  powers  to  participate  in  au  agreement  based  upon 


CHAP.  VI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850,    [\)  150/ 

the  conveutiou  of  1850,  the  President  is  constrained,  by  the  considera- 
tions already  presented,  to  say  that  the  United  States  cannot  take  part 
in  extending  such  an  invitation,  and  to  state  with  entire  frankness, 
that  the  United  States  woukl  look  with  disfavor  upon  an  attempt  at  a 
concert  of  political  action  hy  other  powers  in  that  direction. 

"  It  is  not  necessary  to  observe  that  there  is  no  provision  of  the  Clay- 
ton-Bulwer  treaty  which  authorizes  Great  Britain  to  invite,  or  obliges 
the  United  States  to  accept,  the  aid  of  other  nations  to  protect  or  to 
guarantee  the  neutrality  of  the  Panama  route. 

"  Fortunately  the  want  of  harmony  in  the  views  of  the  two  Govern- 
ments can  have  at  present  no  injurious  influence.  No  canal  yet  exists 
across  the  Isthmus,  and  in  the  natural  course  of  events  some  time  must 
elaijse  before  one  can  be  constructed  ',  meanwhile  the  points  of  diver- 
gence between  Her  Majesty's  Government  and  that  of  the  United  States 
may  disappear.  The  President  hopes  that  long  before  the  subject  be- 
comes one  of  practical  importance  Her  Majesty's  Government  may  be 
brought  to  see  that  the  interests  of  Great  Britain  and  of  the  United 
States  in  this  matter  are  identical,  and  are  best  promoted  by  the  peace- 
ful policy  which  he  has  marked  out  for  this  country. 

"  In  the  mean  time  the  diversity  of  opinion  which  now  exists  will  not 
in  any  wise  impair  the  good  understanding  happily  existing  between 
the  people  and  Governments  of  tbe  United  States  and  Great  Britain. 

"  You  will  read  this  dispatch  to  Lord  Granville,  and  if  he  desires  to 
have  a  copy  of  it  you  may  leave  one  with  him." 

Mr.  Freliughnysen,  Sec.  of  State,  to  Mr.  Lowell,  May  8,  1882.     MSS.  Inst., 
Gr.  Brit. ;  For.  Rel.,  1882. 

"  I  inclose  herewith  copy  of  an  instruction  from  Lord  Granville  to 
ller  Britannic  Majesty's  minister  in  Washington,  dated  December  30, 
1882,  a  copy  of  which  was  handed  to  me  by  Mr.  West,  and  which  is  a 
reply  to  the  agreement  contained  in  my  No.  3G8  to  you,  of  May  8,  1882, 
on  the  subject  of  the  Clayton-Bulwer  treaty. 

"  You  will  remember  that  my  No.  3G8  showed  that  the  first  seven 
articles  of  the  treaty  related  to  a  particular  canal  then  in  contemplation, 
to  aid  the  construction  of  which  the  treaty  was  signed;  that  the  United 
States  being  then  without  the  means  to  build  the  canal,  for  which  they 
liad  secured  an  exclusive  grant  from  Nicaragua,  naturally  turned  to 
England  for  cai)ital,  to  secure  which  they  were  willing  to  surrender 
some  of  their  exclusive  privileges ;  and  that  the  canal  never  having  been 
built,  the  reason  for  the  surrender  of  privilege  has  ceased  and  the  treaty 
with  Great  Britain  is  voidable,  being  without  consideration  or  any  ob- 
ject to  which  it  is  applicable. 

"  Lord  Granviih^  in  his  instruction  tOi\Ir.  West  in  substance  concedes 
that  the  first  seven  articles  of  the  treaty  related  to  what  was  then  known 
as  the  Nicaragua  Canal,  but  intimates  an  uncertainty  as  to  the  route. 

229 


§  150/]  TREATIES.      ■  [chap.  VI. 

In  this  be  is  in  error,  for  the  line  of  the  canal  was  definitely  fixed  soon 
after  the  conclusion  of  the  treaty,  and  accei)ted  by  both  Governments. 

"  His  lordship,  however,  i)ractically  confines  himself  to  an  assertion 
of  rights  under  Article  VllI,  by  which  the  parties,  'after  declaring  that 
they  not  only  desired  in  entering  into  the  convention  to  accomplish  a 
particular  object,  but  also  to  establish  a  general  principle,  agreed  to 
extend  their  protection  by  treaty  stipulations  to  any  other  practicable 
communications,  wliether  by  canal  or  railway,  across  the  isthmus  which 
connects  North  and  South  America,  and  esi)ecially  to  the  interoceanic 
communications,  should  the  same  prove  to  be  practicable,  whether  by 
canal  or  railway,  which  are  iiow  proposed  to  be  established  by  the  way 
of  Tehuantepec  or  Panama.' 

"And  he  claims  that  this  provision  is  in  efl'ect  an  agreement  that  all 
the  prior  provisions  with  reference  to  the  particular  ship-canal — the 
Nicaragua  route — then  in  contemplation  should  be  applied  to  any  other 
canal  thereafter  constructed.  Citing  treaties  between  the  United  States 
and  some  of  the  Central  American  States,  he  contends  that  this  Gov- 
ernment, having  since  the  Clayton-Bulwer  treaty  of  1850  entered  into 
treaties  which  harmonize  with  the  '  general  principle,'  is  estopped  from 
denying  that  the  8th  article  has  the  construction  and  effect  he  contends 
for. 

"  Lord  Granville  further  holds  that  Article  VIII  is  none  the  less  an 
agreement  because  it  provides  for  further  treaty  stipulations  to  carry  it 
into  efiect. 

"  This  argument  has  already  been  anticipated  in  my  "So.  368,  in  which 
it  was  shown  that  while  the  parties  interested  agreed,  in  Article  VIII, 
to  extend,  by  future  treaty  stipulations,  their  protection  over  other  com- 
munications across  the  Isthmus,  the  immediate  object  of  the  article  was 
the  protection  of  the  communication  '•now^  (1850)  i)roposed  to  be  es- 
tablished by  the  way  of  Tehuantepec  or  Panama.  None  of  the  pro- 
posed communications  having  been  established,  the  reason  for  the  agree- 
ment has  disappeared. 

"  Further,  the  article  provides  for  carrying  out  the  '  general  princi- 
ple' by  additional  stipulations,  which  have  not  been  even  discussed. 
Nor  is  there  anything  in  the  eighth  article  which  makes  applicable  to 
any  other  route  the  provisions  of  the  first  seven  articles  covering  the 
'  particular  object,'  viz,  the  Nicaragua  Canal. 

"The  eighth  article,  therefore,  is  simply  a  declaration  of  the  intention 
entertained  more  than  thirty  years  ago,  by  two  nations,  to  take  up,  at 
some  subsequent  period,  the  negotiations  of  a  treaty  on  a  particular 
subject.  In  order  to  carrj-  out  this  purpose,  treaties  must  be  made  by 
the  United  States  and  England  with  each  other  and  with  each  of  the 
Central  American  States  through  which  a  canal  may  be  built,  defining 
in  detail  the  stipulations  necessary  to  execute  the  general  principle. 

"It  cannot  be  successfully  contended,  as  is  suggested  by  Lord  Gran- 
ville, that  the  separate  treaties  made  by  this  company  with  some  of  the 
230 


CHAP.  VI.]  GREAT  BRITAIX:  CLAVTOX-BtTLWER  TREATY,  1850.    [vN150/ 

Central  xVmericau  States,  by  which  this  Government  agrees  to  guar- 
antee neutrality,  show  an  agreement  to  guarantee  it  jointly  with  Great 
Britain,  for  that  would  involve  the  admission  that  a,n  express  agree- 
ment to  guarantee  singly  is  in  eifect  an  implied  agreement  to  guarantee 
jointly.  Nevertheless,  it  is  not  denied  that  the  United  States  did  for 
many  years  try  to  induce  Great  Britain  to  fulfill  her  part  of  the  agree- 
ment of  ISoO,  and  it  was  only  when  it  became  impossible  for  Her  Majes- 
ty's Government  to  perform  the  promises  which  had  led  the  United 
States  to  make  the  treaty  that  the  position  now  maintained  was  as- 
sumed. 

"  If  it  be  contended  that,  even  if  the  treaty  may  be  considered  as  lapsed 
so  far  as  it  relates  to  the  specific  route  by  i«Iicaragua  and  the  routes 
named  in  the  eighth  article  as  contemplated  in  1850  (by  Panama  and 
Tehuantepec),  yet  the  treaty  is  binding  so  far  as  it  relates  to  other  isth- 
mian communication  not  specified  and  not  then  contemplated,  the  an- 
swer is  that  the  treaty  must  be  considered  as  a  whole,  and  that  the  gen- 
eral stipulations  of  the  eighth  article  would  never  have  been  made  but 
for  the  stipulations  as  to  the  specified  routes  then  contemplated,  and 
that  part  of  the  treaty  having  lapsed,  the  general  stipulation  as  to  any 
interoceanic  communication  fails  for  want  of  consideration. 

"  To  reach  the  construction  his  lordship  seeks  to  put  on  the  eighth 
article,  its  plain  language  must  be  disregarded,  and  the  consideration 
must  be  ignored  that  the  article  is  as  applicable  to  the  Panama  Eail- 
road  as  to  any  other  means  of  isthmian  transit,  and  that  by  acquies- 
cence for  many  years  in  the  sole  protectorate  of  the  United  States  over 
this  railway.  Great  Britain  has,  in  effect,  admitted  the  justice  of  the 
l)osition  now  maintained  by  the  President. 

''  Passing  the  interpretation  of  Article  VIII,  you  will  remember  that 
I  contended  that  the  Clayton-Bulwer  treaty  is  voidable,  because,  while 
by  Article  I  the  two  nations  expressly  stipulated  that  neither  of  them 
would  occujjy,  colonize,  or  exercise  any  dominion  over  any  part  of  Cen- 
tral America,  Great  Britain  at  this  time  has  a  colony,  with  executive 
and  judicial  oflBcers,  occupying  a  defined  territory  nearly  equal  in  area 
to  three  of  the  smaller  States  in  the  Union. 

"  It  is  true,  as  was  shown  in  my  jS^o.  3G8,  that  after  the  treaty  had  been 
ratified  by  the  Senate  in  the  form  in  which  it  now  appears,  and  on  the 
4th  July,  1850,  Mr.  Clayton  did  exchange  with  Sir  Henry  Bulwer  mem- 
oranda stating  that  the  stipulation  in  Article  I  should  not  apply  to  the 
'  settlements^  in  British  Honduras  (Belize),  and  it  is  also  true  that  Mr. 
Clayton  declined  to  affirm  or  deny  the  British  title  in  this  '  settlement' 
or  its  alleged  dependencies.  Lord  Granville  now  claims  that  Honduras 
was  then  already  (and  to  the  knowledge  of  this  Government)  a  British 
'possession'  or  colony,  by  conquest  from  Spain  through  successful  re- 
sistance by  settlers  to  a  Spanish  attack. 

"  The  stipulations  of  tlic,  treaty,  as  well  as  the  n)emoranda  oxclianged 
by  Mr.  Clayton  and  Sir  Henry  Bulwer,  relative  to  a  British  settlement, 

231 


§  150/]  TREATIES.  [chap.  VI 

.ipi)ear  to  be  incoiisisti'iit  uith  any  such  claim,  1(  r  nowhere  in  them  can 
be  found  any  statement  AvLicb  expresses  or  implies  tliat  Great  Britain 
chiimcd,  or  tlie  United  States  admitted,  any  such  Government  control 
in  tlie  former  over  liebze  as  is  now  advanced,  and  as  is  necessarily  im- 
plied in  the  word  'possessions.' 

"The  date  of  the  conquest  of  IJelize,  alhided  to  by  Lord  Granville,  is 
not  stated,  but  the  incident  to  which  he  refers  is  supposed  to  be  the 
repulse  by  a  ship  of  the  royal  navy  and  the  settlers  of  an  attempt  in 
1798  on  the  part  of  Spain  to  take  ])ossession  of  Donduras.  As  the 
British  settlers  held  under  grants  from  Spain,  it  seems  hardly  neces- 
sary to  consider  whether  the  successful  resistance  of  a  tenant  to  an 
attempt  to  oust  by  force  changes  the  tenure  to  one  of  full  possession. 
His  lordship,  however,  meets  this  point  by  a  plea  of  possession  through 
abandonment,  saying : 

"  '  AVhen  i)eace  was  signed,  most  of  the  British  conquests  from  Spain 
Avere  restored  to  her;  but  the  settlement  in  Honduras,  like  that  of  the 
Falkland  Islands,  was  not  given  n]>,  and  continued  on  the  same  footing 
as  any  other  possession  under  the  British  Crown.' 

"By  the  third  article  of  the  treaty  of  Amiens,  of  1802,  Great  Britain 
engaged  to  restore  all  Spanish  possessions  occupied  or  conquered  by 
British  forces.  Belize  was  not  given  up  because  it  was  not  a  conquest, 
but  a  settlement  under  Spanish  grants  and  Spanish  sovereignty.  The 
parallel  with  the  Falkland  Islands  does  not  seem  convincing,  for  these 
islands  were  ceded  by  France  to  Spain  in  17G3;  by  Spain  they  were  in 
turn  ceded  absolutely  to  Great  Britain  in  1771,  but  their  possession  was 
abandoned  until,  in  1820,  Buenos  Ayres  occupied  the  island  as  derelict, 
and  colonized  them.  Later,  in  1831,  after  a  difficulty  between  the  settlers 
and  American  sealing  vessels,  the  United  States  ship  of  war  Lexington 
broke  up  the  settlement  and  removed  the  settlers  to  Buenos  Ayres,  and 
it  was  not  until  1833  that  Great  Britain  enforced  her  claim  under  the 
cession  of  1771. 

"As  to  Belize,  however,  there  was  no  cession.  If  the  sovereignty  of 
Spain  was  annulled  by  conquest  in  1798,  it  was  restored  by  the  treaty 
of  Amiens  in  1802;  and  while  after  this  treaty  and  during  the  Bonaparte 
occupation  hostilities  were  renewed,  the  treaty  of  1809  provided  that 
there  should  be  peace  between  Spain  and  Great  Britain,  and  'also 
an  entire  obliteration  of  all  hostilities  committed  during  the  late  war.' 
Since  the  conclusion  of  this  treaty  Spain  and  Great  Britain  have  been 
at  peace,  and  it  is  not  imagined  that  Earl  Granville  will  seek  to  show 
that  a  lawful  i)ossession  could  be  thereafter  created  for  Great  Britain  l)y 
a  violation  of  that  treaty  in  time  of  peace.  Xo  conquest  of  any  part  of 
Honduras  is  known  to  have  occurred  after  1802,  but  if  there  were,  the 
perpetuation  of  this  conquest  would  hardly  comport  with  the  reciprocal 
engagement  of  1809  to  restore  the  status  quo  ante  helium. 

"Ou  the  other  hand,  it  is  known  that  the  settlements  in  the  Belize  were 
made  under  certain  limited  grants  from  Spain,  subject  to  her  sov- 
232 


CHAP.TI.]  GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.    [§150/ 

ereignty,  aud  tbat  long  after  the  treaty  of  1809  the  occupation  was  gen- 
erally regarded  simply  as  a  '  settlement,'  aud  was  so  called  by  Lord 
Clarendon  as  late  as  1854,  in  a  note  to  Mr.  Buchanan,  and  so  remained 
until  May  12,  1862,  when  by  royal  commission  it  was  erected  into  a 
full  colony  and  subordinated  to  the  Government  of  Jamaica. 

"If  Great  Britain  has  turned  the  'settlement'  maintained  for  the  cut- 
ting of  logwood  and  mahogany  into  an  organized  British  colony,  and 
this  is  admitted,  or  if  that  settlement  has  encroached  beyond  the  line 
occupied  by  the  settlers  in  1850,  aud  the  reports  from  Guatemala  and 
Mexico  tend  to  show  that  this  has  been  done,  the  action  has  been  taken 
in  contravention  of  the  Clayton-Bulwer  treat}'  and  in  violation  of  one 
of  its  most  important  provisions.  The  insufficiency  of  this  part  of  Lord 
Granville's  argument  is  shown  by  the  contention  that  through  a  postal 
convention  this  Government  has  recognized  the  British  position.  The 
negotiation  of  a  postal  convention  in  1869  cannot  be  held  to  involve  any 
admission  of  the  political  status  of  the  Belize  district.  It  is  a  strained 
construction  of  such  an  agreement  to  hold  that  it  works  an  estoppel  as 
to  a  matter  not  in  the  mind  of  either  party  to  the  negotiation,  and  as  to 
which  both  parties  were  endeavoring  to  reach  a  satisfactory  conclusion 
through  other  and  different  channels;  nor  does  the  Post-Office  Depart- 
ment act  politically  in  its  dealings  with  similar  departments  of  other 
Governments. 

"  If,  however,  the  United  States  had  submitted  to  the  conversion  of 
the  Belize  to  a  colony  by  Her  Majesty's  Government,  in  violation  of  the 
treaty,  that  is  by  no  means  a  recognition  of  the  binding  force  of  the 
treaty  on  the  United  States  when  thus  violated. 

"  In  the  conviction,  therefore,  that  the  arguments  heretofore  presented 
by  the  United  States  remain  unshaken,  the  President  adheres  to  the 
views  set  forth  in  the  instruction  to  you  of  May  8,  1882. 

"  Lord  Granville  concludes  by  saying  in  effect  that  he  doesuot  answer 
that  part  of  the  instruction  to  you  which  relates  to  the  Monroe  doctrine, 
because  of  my  observation  that  it  is  not  necessary  for  Her  Majesty's 
Government  to  admit  or  to  deny  that  doctrine.  As  his  lordship  placed 
the  claim  of  Her  Majesty's  Government  on  the  continued  binding  force 
of  the  Clayton-Bulwer  treaty,  limiting  that  doctrine  as  -we  contend,  I 
think  my  remark  was  logical,  and  so  far  as  the  Uuited  States  are  con- 
cerned, their  views  on  that  doctrine  are  sufiBciently  manifest. 

"You  will  assure  Lord  Granville  that  this  Government  shares  the  sin- 
cere desire  of  that  of  Her  Majesty  to  arrive  at  that  amicable  adjust- 
ment of  the  question  which  cannot  fail  to  promote  harmony  and  good 
will  ])etween  the  two  countries,  and  which  it  is  my  duty  and  pleasure 
equally  with  his  lordship  to  do  all  in  my  power  to  perpetuate  and 
increase." 

Mr.    Frelinghuysen,  Sec.   of    State,  to  Mr.  Lowell,  May  5,  1883.     MSS.  Inst., 
Gr.  Brit. ;  For.  Rel.,  1883. 

233 


§  loO/]  TREATIES.  [cHAf.  VI. 

"I  inclose  liorowith  a  copy  of  an  instruction  from  Lord  Granville  to 
Her  Britannic  Majesty's  minister  in  Washinj^ton,  dated  August  17, 1883, 
a  copy  of  wiiicli  was  banded  me  by  INlr.  West,  and  which  is  in  reply  to 
my  o8G  to  you  of  May  5,  1883,  on  the  subject  of  the  ClaytonBulwer 
treaty, 

"  You  will  observe  that  Lord  Granville  says  : 

"'That  Mr.  Frelinghuysen  still  contends  that  the  Clayton-Buhver 
treaty  is  voidable  on  two  grounds— first,  because  the  first  seven  articles 
of  the  treaty  related  to  a  pariicnhir  canal  by  the  Nicaraguan  route  only ; 
and,  secondly,  because  Great  Britain  has  at  the  present  day  a  colony 
instead  of  a  settlement  at  Belize.' 

"Lord  Granville's  attention  should  be  called  to  the  fact  that  this 
Government  not  only  holds  the  jiosition  to  which  he  has  referred,  but 
also  holds,  as  stated  to  you  in  my  instructions  of  May  8, 1882,  and  May 
5,  1883,  that  for  the  purpose  of  obtaining;  the  then  needed  capital  to 
construct  an  interoceanic  canal  by  the  Nicaraguan  route  the  United 
States  were  willing  to  surrender  a  part  of  their  exclusive  privileges  in 
a  canal  by  that  route,  and  were  also  willing  to  agree  that,  by  subseqiuMit 
treaty  stipulation,  they  would  join  with  Great  Britain  in  the  protection 
of  the  then  proposed  Tehuantepec,  Panama,  or  other  interoceanic  com- 
munication, and  that  the  consideration  having  failed  the  treaty  is  void- 
able as  to  the  Kicaraguan  route  and  as  to  the  other  routes. 

"  Lord  Granville  raises  the  point  that '  no  time  was  fixed  by  the  con- 
vention within  which  such  interoceanic  communications  were  to  be  made.' 
While  this  statement  is  correct,  it  is  also  true  that  it  was  contemplate<l 
that  the  canal  was  about  to  be  constructed  at  the  time  the  treaty  was 
negotiated,  and  that  the  survey  therefor  was  then  made,  and  that 
thirty-three  years  have  elapsed  without  Great  Britain  rendering  the 
consideration  on  which  the  treaty  was  based,  and  this  failure,  we  think, 
affects  the  treaty  in  the  same  manner  that  a  failure  by  Great  Britain  to 
give  the  consideration  within  a  definite  time,  had  one  been  fixed  by  the 
convention,  would  have  affected  it. 

"  The  treaty  provides  that  neither  the  United  States  nor  Great  Brit- 
ain shall  colonize  or  exercise  any  dominion  over  any  part  of  Central 
America.  This  was  a  most  important  provision.  It  is  one  of  a  cluster 
restraining  one  nation  from  having  any  advantage  over  the  other  in  re- 
gard to  the  police  of  the  canal,  such  as  the  provision  against  alliance, 
against  occupation  and  fortification,  and  against  taking  advantage  of 
any  intimacy  or  influence,  and  yet  it  is  claimed  that  the  treaty  does  not 
prohibit  the  existence  of  a  large  regularly  organized  British  colonj'  in 
Central  America,  while  it  does  prohibit  the  United  States  from  having 
any  possession  or  colonj-  there.  The  color  for  this  claim  is  that  while 
the  stipulation  that  neither  of  the  two  Governments  should  colonize  any 
part  of  Central  America  is  most  conspicuous,  the  declaration  of  Sir 
Eenry  Bulwer,  prior  to  the  exchange  of  ratifications  of  the  treaty, 
234 


CHAP.TI.]    GREAT  BRITAIN:  CLAYTOX-BULWER  TREATY.  1850.   [§  150/ 

states,  'That  Her  Majesty  does  not  nuderstaud  the  engagements  of  that 
convention  to  apply  to  Her  Majesty's  settlement  at  Honduras  or  its  de- 
pendencies.' This  declaration  cannot  be  held  to  aathorize  the  subse- 
quent colonization  by  Her  Majesty's  Government  of  a  territory  as  large 
as  three  of  our  smaller  States.  The  declaration  was  made  not  to  change 
or  vary  the  treaty,  but  out  of  abundant  caution  that  it  might  not  be 
misunderstood.  The  meaning  of  the  declaration,  we  think,  is  that  a 
mere  settlement  of  British  subjects  for  the  i^urpose  of  cutting  mahogany 
and  logwood  in  Honduras  under  Spanish-American  sovereignty  was  not 
to  be  considered  a  British  colony  and  thus  be  a  violation  of  the  treaty, 
and  I  fail  to  see  how,  since  the  exchange  of  the  ratifications  of  the 
treaty,  the  organization  of  a  colony,  with  a  full  colonial  government 
under  the  British  sovereignty,  can  be  looked  uj)on  as  authorized  or 
allowed,  either  by  the  treaty  or  by  Sir  Henry  Bulwer's  declaration. 

"The  two  contracting  powers  were  equally  bound  not  to  colonize  any 
part  of  Central  America,  and  the  declaration  itself  of  Sir  Henry  Bulwer, 
not  being  the  exception  of  any  territory  in  Central  America  from  the 
operation  of  the  treaty,  but  providing  in  effect  that  the  settlement 
should  not  be  considered  a  British  colony,  tended  to  strengthen  and  not 
to  destroy  the  mutual  obligation  not  to  colonize  in  Central  America. 

"  Lord  Granville  is  correct  in  saying  that  I  stated  in  my  instruction  to 
you  of  May  8, 1882,  that  Her  Majesty's  Government  was  not  called  upon 
either  to  admit  or  deny  the  views  therein  expressed  as  to  the  IMonroe 
doctrine,  and  this  was  so  for  the  reason  there  given,  to  wit,  because  Her 
Majesty's  Government  i)laced  its  claim  to  join  in  the  protection  of  the 
interoceanic  canal  on  a  treaty  which,  if  binding,  certainly  modified  the 
Monroe  doctrine,  but  the  fact  that  this  Government  for  a  promised  con- 
sideration modified  by  treaty  what  is  called  the  Monroe  doctrine,  I  think, 
does  not  in  any  manner  affect  that  doctrine  after  the  treaty  has  fallen, 
because  of  its  infraction  and  because  of  the  failure  of  the  consideration 
contemplated." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Lowell,  Xov.  22, 1883.    MSS.  Inst.,  Gr. 
Brit. ;  For.  Rel.,  1883. 

Distinctive  questions  as  to  the  Isthmus  are  discussed  infra,  §§  287  ff; 
see  also  supra,  §  57. 

"  The  Clayton-Bulwer  treaty  was  voidable  at  the  option  of  the  United 
States.  This,  I  think,  has  been  demonstrated  fully  on  two  grounds. 
First,  that  the  consideration  of  the  treaty  having  failed,  its  object  never 
having  been  accomplished,  the  United  States  did  not  receive  that  for 
which  thej'  covenanted  ;  and,  second,  that  Great  Britain  has  persist- 
ently violated  her  agreement  not  to  colonize  the  Central  American 
coast." 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  Hall,  July  19,  1884.     MSS.  Inst.,  Cent. 
Am. 

235 


§  150/]  TREATIES.  [cnAP.  VI. 

A  report  in  favor  of  abrofjatiou  of  the  Clay  ton -Biihver  treaty  was  made 
in  the  Ilouse  on  April  10,  1S80.     (House  Kep.  1121,  40lli  Cong.,  lM  sess.) 

Documents  relatiuji  to  tlio  corrospoudouce  of  the  Uuitoil  Statos  with  Central 
America  in  184!>-'51,  will  be  found  in  the  Brit,  and  For.  St.  Pap.  for  1830-'51,  vol.  40, 
953.     These  documents  are  as  follows: 

Mr.  Crampton  (Washington)  to  Lord  Palmerston,  Sept.  17,  1849,  giving  conversation 
with  Mr.  Clayton,  Sec.  of  State,  as  to  the  latter'.s  views  in  respect  to  the  Hise 
treaty  with  Nicaragua,  and  as  to  Isthmus  transit. 

Mr.  Crampton  to  Lord  Palmerston,  Oct.  1,  1849,  giving  further  conversations  with 
Mr.  Clapton. 

Mr.  Abbott  Lawrence  (American  minister  at  London)  to  Lord  Palmerston,  Nov.  8, 
1?40,  inquiring  as  to  the  attitude  of  Great  Britain  as  to  joint  guarantee  of  I.sthmus 
transit. 

Lord  Palmerston  to  Mr.  Crampton,  Nov.  9,  1849,  Nov.  13,  1849,  inviting  further  dis- 
cussion. 

Lord  Palmerston  to  Mr.  Lawrence,  Nov.  13,  1849,  Nov.  19,  1849,  as  to  further  discus- 
sion, and  as  to  the  Squier  treaty  with  Nicaragua,  which  Lord  Palmerston  held 
would,  in  its  provision  as  to  Greytown,  "involve  the  United  States  in  an  unpro- 
voked aggression  towards  Great  Britain." 

Article  XXXV  in  a  treaty  between  the  United  States  and  New  Granada,  signed  at  Bo- 
gota, Dec.  12,  1846. 

Special  convention  between  the  United  States  and  Nicaragua  and  Guatemala,  June 
21,1849.     (Hise  treaty.) 

Extract  from  the  proposed  treaty  between  the  United  States  and  Nicaragua,  relating 
to  the  proposed  canal,  Sept.  3,  1849. 

Contract  between  Nicaragua  and  the  Canal  Company,  signed  at  Leon,  Aug.  27, 
1849. 

Mr.  Lawrence  to  Lord  Palmerston,  Nov.  22,  1849,  Dec.  15,  1849,  as  to  future  nego- 
tiations. 

Sir  H.  Bulwer  to  Lord  Palmerston,  Washington,  Jan.  6,  1850,  as  to  future  nego- 
tiations. 

Mr.  Lawrence  to  Lord  Palmerston,  Jan.  30,  1850,  as  to  provisional  cession,  on  Sept. 
28,  1850,  of  Tigre  Island  to  the  United  States,  and  the  seizure  of  the  island 
on  Oct.  16,  1850,  by  British  forces,  including  instrument  of  cession,  and  decree  of 
Oct.  9,  1849,  granting  cession ;  also  correspondence  in  October  and  November, 
1849,  between  Messrs.  Sqnier  and  Chatfield  as  to  contested  possession  of  Tigre, 
Island. 

Lord  Palmerston  to  Mr.  Lawrence,  Feb.  13,  1850,  announcing  evacuation  of  Tigre 
Island,  and  stating  "  that  Her  Majesty's  Government  do  not  intend  to  occupy  or 
colonize  Nicaragua,  Costa  Pica,  the  Mosquito  coast,  or  any  part  of  Central 
America." 

Sir  H.  Bnlwer  to  Lord  Palmerston,  Feb.  .3, 1850,  as  to  protectorate  of  Mosquito  country 
and  other  matters  in  Central  America. 

Project  of  convention  between  Sir  H.  Bulwer  and  Mr.  Clayton,  and  letter  regarding 
the  negotiation  thereof. 

President's  message  on  the  Nicaragua  question.  Feb.  13,  1850,  and  action  of  Senate 
thereon. 

Correspondence  between  Sir  H.  Bulwer  and  Lord  Palmerston  as  to  negotiations  be- 
tween Feb.  18,  1850,  and  Sept.  25, 1851.  Criticism  on  Sqnier's  treaty  with  Nic- 
aragua. 

Treaty  of  United  States  with  Nicaragua  of  Sept.  3,  1849. 

Lord  Palmerston  to  Sir  H.  Bulwer,  Oct.  23,  1850,  further  criticising  the  above  treaty. 

Sir  H.  Bulwer  to  Lord  Palmerston,  Mav  19,  1851,  making  suggestions  as  to  Greytown 
and  Mosquito  country, 

236 


CHAP.  VI.]   GREAT  BRITAIN:  CLAYTOX-BULWER  TREATY,  1850,    [§  150/ 

Same  to  same,  July  '26,  1851,  as  to  conversations  vritL  Mr.' Webster  relative  to  Grey- 
town  and  Nicaragua  ;  further  correspondence  relative  thereto. 

Mr.  Lawrence  to  Lord  Palmerston,  Dec.  19,  18.tI,  as  to  "  outrage  on  U.  S.  steamship 
Prometheus,"  by  British  brig-of-war  Express.  Account  by  Captain  Churchill 
thereof,  Nov.  21,  1651. 

Lord  Granville  to  Mr.  Lawrence,  Dec.  30,  18.^1,  disavowing  actios  of  Esj)ress. 

The  following  documents  are  among  our  Congressional  records : 

Instructions  to  Minister  Lowell.  President's  message,  Dec.  15,  1881,  S.  Ex.  Doc.  16, 
47th  Cong,  1st  sess. 

Mr.  Lowell's  dispatch  on  instructions.  President's  message,  Jan.  27, 1882,  S.  Ex.  Doc. 
78,  47th  Cong.,  1st  sess. 

Earl  Granville's  reply.  President's  message,  Feb.  17,  1862,  S.  Ex.  Doc.  78,  part  2, 
47th  Cong.,  1st  sess. 

Further  answer  to  Senate  resolution.  Rei^ort  of  Mr.  Frelin^huyseu,  Sec.  of  State,  in 
regard  to  the  modification  of.  President's  message,  June  6,  1882,  S.  Ex.  Doc.  78, 
part  3,  47th  Cong.,  1st  sess. 

Monroe  doctrine  and  the  Clayton-Bulwer  treaty.  Papers  and  correspondence  giving 
a  historical  reyiew  of  the  relations  between  Great  Britain  and  the  United  States 
with  respect  to  Central  America,  and  the  construction  of  communications  between 
the  Atlantic  and  Pacific  Oceans.  President's  message,  July  29,  1882,  S.  Ex.  Doc. 
194,  47th  Cong.,  1st  sess. 

Report  of  Mr.  Frelinghuysen,  Sec.  of  State,  transmitting  correspondence  not  hereto- 
fore communicated.  President's  message,  Dec.  19,  1863,  S.  Ex.  Doc.  26,  48th 
Cong.,  1st  sess. 

"  This  treaty  (Clayton-Bulwer),  after  having  been  ratified  by  the  Sen- 
ate, upon  its  language,  and  not  upon  the  understanding  of  the  negotia- 
tors, was  sent  to  England  for  the  sanction  of  the  Government;  and 
there,  circumstances  show,  that  apprehension  was  excited  lest  the  Hon- 
duras settleuient  should  be  embraced  within  the  limits  of  the  region  over 
which  it  extended.  To  prevent  this  it  was  returned  with  a  quasi  rati- 
fication, or,  rather,  a  declaration,  that  the  settlement  at  Llonduras  and 
its  dependencies  was  nut  subject  to  the  'engagements'  of  the  treaty; 
and  this  declaration  was  received  and  reciprocated  by  the  Secretary  of 
State  by  a  similar  act,  which  the  Senator  from  Delaware  calls  a  counter 
declaration,  but  why,  I  confess  my  inability  to  discover,  for  it  does  not 
counteract  the  demand  of  the  British  minister,  but  assents  to  it  by  con- 
ceding that  the  'engagements'  of  the  treaty  do  not  apply  to  British 
Honduras  and  its  dependencies.  *  *  *  Now,  sir,  what  was  the  duty 
of  the  Executive  when  a  treaty  was  thus  returned  with  a  declaration  in- 
tended to  control  its  ojjeration  by  considerations  exterior  to  tlie  stipu- 
lations? Why,  to  send  it  again  to  the  Senate,  a  constituent  branch  of 
the  treaty-making  i)Ower,  for  its  consideration  and  action,  and  not  un- 
dertake to  restrict  its  application  by  the  understanding  of  the  negotia- 
tors, at  the  expense  of  the  language  of  the  convention,  though  one  of 
these  hapi»eiied  to  be  the  Stcretary  of  State,  for  this  union  of  functions 
was  but  an  accident,  and  what  was  done  upon  that  occasion  may  be  done 
ujjon  any  other,  and  the  understanding  of  these  agents  of  negotiation 
may  become  more  iniportant  than  the  text  of  the  instrument  itself." 

General  Cass,  .speech  in  Senate,  Jan.,  1854,  given  in  Cass's  Life  (by  Smith),  756. 

Under  the  Chiyton-Bulwer  treaty  neither  i)arty  has  a  lawful  right  of 
protectorship  over  the  Indians  of  the  Mosquito  coast. 

80p.  436,  Cuf*)iing,  18.j3.    See  further,  1  Dallas's  Letters  from  London,  11;  2Phill. 
Int.  Law  (3d  cd.),  Pref.,  p.  v  ;  T.  J.  Lawreiico's  Essays  on  Int.  Law,  89  ff. 

237 


§  150/.]  TREATIES.  [chap.  VI. 

"The  acquisition  of  California,  the  easiest  approaches  to  which,  at 
that  time,  were  tlirouuh  tlie  various  isthmus  i)assa<i:es  from  Tehuante])c'(; 
to  Darien,  raised  new  questions  witli  Great  Britain.  It  was  su}>|)os('(l 
that  the  most  ])racticable  route  for  a  shi])  canal  was  tlirou<.>h  the  State 
of  Nicara<i:ua,  by  way  of  the  ISan  Juan  Kivcr  and  the  la!;cs  throu<;ii 
which  it  passes.  The  eastern  coast  of  Nicaiaj^ua  was  occupied  by  a 
tribe  called  the  ^Mosquito  Indians,  and  Lord  I'almerslon  ollicially  in- 
formed Abbott  Lawrence,  the  American  minister  at  London,  on  the  13th 
of  iS'ovember,  1841),  that  'a  close  i)olitical  connection  h;id  existed  be- 
tween the  Crown  of  Great  Britain  and  the  iState  and  territory  of  Mos- 
quito for  a  i)eriod  of  about  two  centuries.'  This  connection  was  asserted 
to  have  been  founded  on  an  allejicd  submission  by  the  Moscjuito  Kinj;- 
to  the  governor  olM;imaica.  The  investijjations  made  under  Lawrence's 
directions  enabled  the  United  States  not  only  to  deny  that,  by  jjiiblic 
law,  Indians  j'ould  transfer  sovereijiuty  in  the  manner  alleged,  but  also 
to  show  by  contemporary  evidence  that  no  such  transfer  had  been  made, 
lie  quoted  Sir  Hans  Sloane's  account  of  the  matter:  'One  King  Jeremy 
came  from  the  ]Mosquitoes  (;in  Indian  i)eoj)le  near  the  provin(;es  of  iV/ca- 
ragua,,  Honduras,  and  Costa  liica) ;  he  i)retended  to  be  a  king  there,  and 
came  from  the  others  of  his  country  to  beg  of  the  Duke  of  Albemarle, 
governor  of  Jamaica,  his  protection,  and  that  he  would  send  a  governor 
thitljer  with  a  power  to  war  on  the  Spaniards  and  ])irates.  This  he  al- 
leged to  be  due  to  his  country  from  the  Crown  of  IJnfjland,  who  had  in 
the  reign  of  King  CharJcs  I  submitted  itself  to  him.  The  Duke  of  Albe- 
marle did  nothing  in  this  matter.'  And  from  another  publication,  re- 
printed in  Churchill's  Voyages,  Lawrence  was  able  to  give  an  account 
of  the  original  alleged  submission  in  the  time  of  Charles  I:  'He,  the 
King,  says  that  his  father,  Oldman,  King  of  the  Mosquito  men,  was 
carried  over  to  England  soon  after  the  conquest  of  Jamaica,  and  there 
received  from  his  brother  King  a  crown  and  commission,  which  the 
l)reseut  old  Jeremy  still  keeps  safely  by  him,  which  is  but  a  cocked  hat 
and  a  ridiculous  i)iece  of  writing  that  he  should  kindly  use  and  release 
such  straggling  Englishmen  as  should  choose  to  come  that  way,  with 
plantains,  fish,  turtle,  etc.'"    (See  infra,  §§  295  jf.) 

Mr.  J.  C.  B.  Davis,  Notes,  &,c. 

The  relation  of  the  Clayton-Bulwer  treaty  to  the  Isthmus  is  discussed 
infra,^^2S7ff. 

The  circumstances  leading  to  the  Clayton-Bulwer  treaty  were  noticed 
at  the  beginning  of  this  section,  and  it  was  there  shown  that,  while  the 
object  on  which  the  treaty  w^as  meant  to  operate  (the  ship  canal  then 
projected  over  Nicaragua),  never  existed,  the  only  portion  of  the  treaty 
to  which  efliciency  in  calling  ibr  a  joint  isthmus  protectorship  by  Great 
Britain  and  the  United  States  could  now  be  ascribed  is  the  eighth  ar- 
ticle. It  would  be  im]>r()i)er  in  this  place  to  examine  this  claim  so 
far  as  it  relates  to  negotiations  still  in  ])rogress.  But  as  to  its  rela- 
tion to  the  g^eneral  principles  of  international  law  as  declared  in  other 
portions  of  this  work,  the  following  observations  may  be  made: 

1.  Stipulations  in  treaties  based  on  a  ]»articular  state  of  facts  become 
inoperative  when  these  facts  are  so  materially  modified  thatthese  stipula- 
tions cannot  be  rightfully  enforced.  {Supra,  §  137a.)  By  no  power  has 
this  principle  been  more  strictly  enforced  than  by  Great  Britain.    Her 

238 


CHAP.  VI.]  GREAT  BRITAIN:  CLAYTOX-BULWER  TREATY,  1850.  [§150/ 

guarantee  in  the  treaty  of  CLaumout,  in  181G,  of  the  integrity  of  Hol- 
land, for  instance,  she  held  to  be  vacated  in  1830,  on  the  ground  that 
Belgium  could  not  be  made  to  work  peacefully  in  the  Dutch  yoke,  which 
was  in  3816  the  very  dauger  agaiust  which  she  guaranteed  ;  nor  has  she 
hesitated  from  time  to  time  to  accept,  if  not  to  promote,  other  revolu- 
tionary changes  which  tore  to  tatters  the  settlement  she  united  in  guar- 
anteeing on  the  fall  of  Xapuleon.  But  the  intermediate  changes  she 
appealed  to  as  sustaining  her  repudiation  of  these  treaties  are  far  less 
material  than  the  changes  in  America  which,  since  the  treaty  of  1850, 
now  before  us,  have  left  that  treaty  without  an  object  to  which,  in  the 
sense  in  which  it  was  framed,  it  can  rightfully  apply.  The  Nicaraguan 
canal,  which  the  treaty  was  passed  to  protect,  has  been  given  up;  the 
concession  from  [Jsicaragua  on  which  it  was  based  has  been  recalled ; 
and  in  its  place  has  been  constructed  an  interoceanic  railroad,  under  the 
direction,  as  we  will  see,  of  citizens  of  the  United  iStates,  under  the  sole 
guarantee  of  the  United  States,  on  tolls  which  open  it  without  discrimi- 
nation to  all  nationalities  and  on  terms  of  liberality  of  which  Great 
Britain  has  not  hesitated  freely  to  avail  herself,  without  even  an  in- 
timation, as  will  be  more  fully  noticed  hereafter,  that  the  new  system 
she  has  thus  ratified  is  not  regarded  by  her  as  taking  the  place  of 
the  inoperative  system  of  joint  guarantee  proposed  in  the  treaty  of 
1850.  ]Sor  is  this  all.  In  1850  Great  Britain  and  the  United  States 
controlled  almost  the  whole  commerce  that  sought  a  passage  over 
the  Isthmus.  Xow,  Germany  and  France  are  pressing  on  the  Isthmus 
shores  as  equal  competitors.  In  1850  the  Pacific  coast  of  the  United 
States  was  an  unorganized  and  almost  unexplored  waste.  Xow,  on 
that  magnificent  territory,  teeming  as  it  has  been  proved  to  be  with 
mineral  wealth,  and  with  a  climate  and  soil  which  produce  the  most 
varied  and  abundant  crops  of  fruit,  of  vegetables,  and  of  grain,  have 
since  then  sprung  into  existence  a  group  of  orderly  States,  each  with 
an  area  far  exceeding  that  of  Great  Britain,  whose  population,  increas- 
ing with  unparalleled  rapiditj',  and  instinct  with  business  enterprise, 
calls  each  year  the  more  earnestly  and  the  more  reasonably  for  a  free 
exchange  of  its  products  with  those  of  Europe.  Kor  is  this  all.  The 
principle  of  interoceanic  transit  under  single  sovereignties  has  since  1850 
been  recognized  by  both  Great  Britain  and  the  United  States  in  the 
establishment  of  transcontinental  railways,  one  of  which,  that  through 
Canada,  is  dependent  in  part  on  the  comity  of  the  United  States  for 
expedition  on  its  route.  But  a  still  more  important  fact  is  the  non- 
joinder of  other  States  in  the  guarantee  of  "  neutrality  "  provided  for  by 
the  treaty  of  1850.  Xo  "  neutrality,"  viewing  the  term  in  the  sense  of 
"  neutralization,"  goes  into  effect  until,  as  we  will  presently  more  fully 
see,  it  is  acceded  to  by  the  powers  capable  of  waging  civilized  war.  To 
the  treaty  of  1850  there  has  been  no  such  accession.  Ilence  this  treatj^, 
so  far  as  concerns  this  particular  stii)ulation,  has  ceased  to  exist ;  and 
to  Great  Britain  this  conclusion  is  jjeculiarly  applicable,  since  Great 
Britain,  while  advancing  this  claim  to  protectorship,  has  not  taken  a  sin- 
gle step  to  procure  for  the  treaty  that  adhesion  of  otlier  i)owers  by  which 
alone,  as  a  treaty  for  neutralization,  as  will  be  hereafter  seen,  could  it 
be  made  eflective.  And  it  is  to  be  observed,  also,  as  to  the  eighth  ar- 
ticle of  the  treaty  of  1850,  which  is  the  only  part  of  it  which  is  now 
ai)pealed  to  as  j)roviding  for  a  joint  i)rotectorate,  that  it  is  not  a  treaty 
stipulation  lor  the  i»resent,  but  a  stipulation  to  make  a  treaty  in  the 
future.  It  is  ther(;fore  only  a  promise  to  make  a  promise,  and  liUe  all 
other  promises  to  make  promises,  it  refers  to  the  discretion  of  the  future 


§  150/]  TREATIES.  [CIIAP.  VI. 

that  \\iii(;h  is  not  at  the  ])rescMit  detorniiiu'd.  And  to  such  a  treaty  to 
make  a  treaty  in  the  iiitnre,  withont  hniit  as  to  time,  ai)i)lies  i)e<'nliarly 
that  ar-iunient  a<fainst  i)er|)etnity  in  treaties  so  strongly  put  by  Mr.  J. 
S.  Mill  in  a  i)as.sa^"e  already  quoted  {supra,  §  137«) ;  nor  can  wo  do 
otherwise,  in  view  of  the  little  weight  attached  to  such  a<;reements  iu 
other  cases,  as  well  as  of  the  circumstances  of  this  ]>articular  case,  than 
regard  such  engagements,  as  were  the  engagements  of  i)erj)etuity  and 
of  endless  self-continuing  alliance  and  guarantee  which  Great  Britain 
introduced  into  the  treaty  of  Chaumont  and  in  the  settlenu'nts  of  the 
congress  of  Vienna,  as  anything  more  than  expressions  ol'  good  wdl  at 
the  i)resent  and  not  as  i)]edges  of  future  a(;tion.  And  this  (conclusion, 
so  far  as  it  ai)pliesto  attenii)ts  to  impose  by  treaty  ])eip('tual  ol>ligations 
to  readjust  tliemselves  in  their  original  force  to  all  future  contingencies, 
is  true  from  the  nature  of  things,  for,  on  nuitable  conditions,  as  is  argued 
by  Hooker,  with  a  power  of  arguira'nt  and  wealth  of  illustration  to  which 
all  condensations  must  fail  to  do  justice,  there  can  be  no  immutable 
])olity  inijiosed.  And  if  this  be  so,  as  he  maintained,  with  regard  to 
Divine  polity,  it  must,  a  fortiori,  be  so  with  human. 

2.  When  stipulations  are  interde})endent,  a  failure  by  one  i)arty  to 
perform  a  condition  imposed  on  him  justilies  a  reiusal  by  the  other 
])arty  to  i)erform  acts  dei)endent  on  such  condition  being  performed. 
In  no  case  has  this  ])osition  been  i)ushed  to  such  an  extreme  as  it  was 
by  Great  Britain,  when  for  ten  years  after  the  treaty  of  peace  she  re- 
fused to  deliver  up  posts  she  held  within  the  territory  of  tljc  United 
States,  and  which  were  the  centers  round  which  Indians  hostile  to  the 
United  States  were  collected ;  her  ground  bcMug  that  the  payment  of 
British  creditors,  which  the  treaty  only  bound  the  United  States  to  rec- 
ommend, had  not  been  perfected.  {See  supra,  §§  150,  loOa.)  The  agree- 
ment by  the  United  States  in  the  Clayton-Bulwer  treaty  to  admit  Great 
Britain  to  a  joint  protectorship  of  all  future  inter-oceanic  routes,  even 
were  such  an  agreement  valid,  was  conditioned  on  the  entire  withdrawal 
of  Great  Britain  from  the  exercise  of  any  other  protectorship  or  domin- 
ion in  Cential  America.  That  there  was  no  such  entire  withdrawal,  so 
far  as  concerns  the  ]Mosquito  country,  results,  as  will  i)resently  be  seen, 
from  the  conditions  of  her  treaty  with  Nicaragua.  (As  to  the  question 
of  fact,  see '/»/>"«,  §§  295,^.)  So  far  as  concerns  the  Belize  (or  British 
Honduras,  as  she  calls  it),  she  has  since  1850,  as  we  will  see,  converted 
a  mere  squatter  '■•  settlement,"  existing  there  by  the  sufferance  of  Hon- 
duras, into  a  British  colony  under  the  immediate  direction  of  the 
British  Crown.  It  is  true  that  iu  so  doing  she  appeals  to  a  memo- 
randum of  ]Mr.  Clayton,  above  quoted,  giving  his  notion,  after  tiie 
treaty  was  ratified,  of  what  the  treaty  meant.  But  Great  Britain  has 
already  had  occasion  to  acknowledge  and  act  on  the  fact  that  under 
the  Constitution  of  the  United  States,  which  is  open  before  her,  no 
stipulation  iu  a  treaty  that  is  not  sanctioned  by  the  Senate  binds 
the  United  States  internationally  (see  siqira,  §§  131,  131«),  and  she 
could  just  as  rationally'  attempt  to  hold  the  United  States  to  a 
treaty  which  never  went  to  the  Senate,  which  she  has  conceded  she  can- 
not do,  as  to  hold  the  United  States  to  a  supidementary  article  to  a 
treaty,  such  as  Mr.  Clayton's  memorandum  would  be  if  it  bound  at  alK 
when  such  supplementary  article  never  went  to  the  Senate.  But  in 
point  of  fact  Mr.  Clayton's  memorandum  was  not  a  supi)lementary  ar- 
ticle. He  was  a  good  lawyer  as  well  as  a  straightforward  and  loyal 
statesman,  and  he  knew  that  Sir  II.  L.  Bulwer  knew  that  this  memoran- 
<lum  was  a  mere  personal  o])iniou  of  his,  which  had  no  binding  force. 
Had  he  thought  otherwise,  or  had  he  thought  that  Sir  H.  L.  Bulwer 
240 


CTIAP.Vl.]   GREAT  BRITAIN:  CLAYTON-BULWER  TREATY,  1850.    [§150/ 

thought  otheiwise,  he  would  at  ouce  have  sent  the  inenioraiHlum  to  the 
Senate  for  its  action.  But  he  did  not,  and  the  nieuioranduui,  made 
after  the  treaty  ^ras  completed,  and  without  the  solemnization  which 
both  parties  knew^  to  be  necessary  to  its  validity  as  a  supplement  to  the 
treaty,  has  no  other  force  than  is  assignable  to  the  opinion  of  a  negoti- 
ator, understood  bj^  himself  and  his  co-negotiator  to  have  no  binding 
power,  uttered  after  the  transaction  is  closed. 

But  even  admitting  that  Mr.  Clayton's  statement  gives,  together  with 
that  of  Sir  H.  L.  Bulwer,  an  authoritative  construction  of  the  treaty, 
none  the  less  conspicuous  is  the  violation  by  Great  Britain  of  the  stipu- 
lation on  her  part  not  in  future  to  ajcquire  such  possessions  in  Central 
America,  or  bordering  thereon,  as  might  add  materially  to  her  power 
over  an  interoceanic  canal  by  which  Central  America  "should  be  tra- 
versed. The  declaration  of  Sir  H.  L.  Bulwer,  as  acceded  to  by  Air.  Clay- 
ton, which  is  used  to  excuse  the  subsequent  acquisition'  by  Great 
Britain  of  the  Belize,  is  "that  Her  Majesty's  Government  does  uot  un- 
derstand the  engagements  of  that  convention  to  apply  to  Her  ]\Iaj- 
esty's  settlement  at  Honduras  or  its  dependencies."  But,  as  Mr.  Fre- 
linghuysen  justly  says,  in  his  instructions  to  Mr.  Lowell,  above  cited, 
of  Xovember  22,  J  883,  "  this  declaration  cannot  be  held  to  authorize  the 
subsequent  colonization  by  Her  Majesty's  Government  of  a  territory  as 
large  as  three  of  our  smaller  States ; "  as  large,  as  previously  put  by  Mr. 
Freliughuysen,as  Massachusetts, Connecticut, and  Ehode Island.  "The 
meaning  of  the  declaration,  we  think,"  he  goes  on  to  say,  "  is  that  a  mere 
settlement  of  British  subjects  for  the  purpose  of  cutting  mahogany  and 
logwood  in  Honduras  under  Spanish  American  sovereignty  was  not  to 
be  considered  a  British  colony,  and  thus  be  a  violation  of  the  treaty; 
and  1  fail  to  see  how,  since  the  exchange  of  the  ratifications  of  the 
treaty,  the  organization  of  a  colony,  with  a  full  colonial  government 
under  the  British  sovereignty,  can  be  looked  upon  as  authorized  or  al- 
lowed, either  by  the  treaty  or  by  Sir  Henry  Bulwer's  declaration.  The 
two  contracting  i)arties  were  equally  bound  not  to  colonize  any  part  of 
Central  America,  and  the  declaration  itself  of  Sir  Henry  Bulwer,  not 
being  the  excei)tion  of  any  territory  in  Central  America  fiom  the  opera- 
tion of  the  treaty,  but  providing  in  effect  that  the  settlement  should  noc 
be  considered  a  British  colony,  tended  to  strengthen  and  not  to  destroy 
the  mutual  obligation  not  to  colonize  in  Central  America."  But  uot  only 
are  the  terms  of  this  treaty  violated  by  Great  Britain  in  thus  extending 
her  sovereignty  over  the  Belize,  but  the  object  of  the  treaty  is  defeated 
by  the  acquisition  in  Honduras  of  a  territory  on  which  fortresses  could 
be  built  to  overawe  the  coast  of  the  Isthmus,  and  harbors  opened  from 
which  can  issue  cruisers  which  could  control  the  mouth  of  any  canal  by 
•which  the  Isthmus  could  be  pierced.  Xor  do  the  statements  of  Mr. 
Marcy  and  INIr.  Buchanan,  as  quoted  above,  affect  this  conclusion. 
What  Mr.  ]Marcy,  in  his  instructions  of  December  30,  1853,  spoke  of  as 
uot  affording  ground  for  protest  was  the  "qualilie{l"  and  scrambling 
"settlement"  by  British  lumbermen,  uiuler  license  from  Honduras,  of 
the  Belize  for  tin;  purpose  of  cutting  and  sawing  mahogany;  and  the 
same  may  be  said  of  Mr.  Buchanan's  memorandiun  of  July  22,  1854. 
When  Mr.  Buchanan,  also,  in  his  last  annual  message,  spoke  of  the  Brit- 
ish treaty  of  1850  with  Honduras,  and  the  British  treaty  of  18(10  with 
^Nicaragua,  as  "satisfactory,"  he  was  unaware  of  two  important  lacts 
which,  had  he  known  them,  would  have  led  him,  instead  of  expressing 
satisfaction,  to  have  renewed  his  oNl  |)rotest  against  British  aggression 
^n  (neutral  America.     He  did  not  know  that  Great  Uritain  was  tneu 

>>.  Mis.  102— V(U,.  u 10  -'ll 


§  150/]  TREATIES.  [CUAP,  VI. 

orgauiziDg  on  the  Belize,  under  a  strained  construction  or  the  treaty 
of  1850,  a  British  dt-pendcney  under  absohite  r>ritish  control,  enabling 
Great  Britain  to  dominate  the  Isthmus  in  the  teeth  of  her  abjuration  of 
1850.  Nor  did  he  kuow  that,  to  use  the  words  of  ]\lr.  Fish  in  his  instruc- 
tions of  April  1(),  187li,  above  quoted,  the  Nicaragua  treaty  "assigned 
boundaries  to  the  INIosquito  reseivation  ])robably  beyond  the  limits 
which  any  member  of  that  tribe  had  ever  seen,"  nor  that  it  "confirmed 
the  grants  [mostly  to  British  settlers]  i)reviously  nuule  in  IMosciuito 
territory,-'  thereby  securing  the  i)ermanent  possession  of  that  coast  to 
British  subjects. 

3.  lStii)ulations  in  a  treaty  may  cease  to  be  operative  by  surrendiT. 
{iSupro,  §  lo7</.)  Aside  from  the  implication  of  such  surreiuler  by  (Jreat 
Britain  from  her  dropi)ing  all  attempts  to  obtain,  by  the  concurrence  ot 
other  powers,  iin  operative  international  neutralization  of  the  Isthmus, 
we  may  infer  such  surrender,  as  has  been  already  incidentally  noticed, 
from  Great  Britain's  non-application  to  take  i»art  in  the  guarantees  ot 
the  l*anama  route.  If  she  held  the  Clayton-liuhver  treaty  authorized 
lier  to  i)articinate  jointly  in  the  guarantee  a/id  sui>ervisiou  of  all  isth- 
mian routes,  her  zeal  as  well  as  her  interest  would  have  i)rompted  her 
to  claim  this  share  in  the  guarantee  and  supervision  of  the  Paimma 
road  ;  that  she  has  never  made  this  claim  shows  that  either  she  <lid  not 
construe  the  treaty  as  having  such  application,  or  that  if  she  did,  she 
abandoned  the  claim. 

4.  The  assertion  of  such  a  claim  could  not  now  be  nuide  by  Great 
Britain  without  infringing  that  well-established  rule  of  equity  that  a 
party  who  i)ei'mits,  without  protest,  though  with  full  notice,  another 
party  to  go  on  for  years  and  make  investments  in,  and  exercise  dominion 
over,  a  i)articular  i)iece  of  land,  is  estoi)i)ed  from  setting  up  a  conflicting 
title  to  such  land  of  which  title  he  was  all  the  time  cognizant.  This,  on 
a  scale  of  enormous  imi)ortance,  is  the  case  with  Isthmus  transit.  Great 
Britain,  so  it  is  said,  claims  from  the  time  of  the  treaty  of  ]85()  a  jt)int 
])rotectorshii)  over  such  transit,  on  any  line  whatsoever.  Yet,  at  the 
very  time  (1850)  in  which  the  treaty  on  which  she  bases  this  right  was 
executed,  there  was  in  force  a  treaty  between  the  United  States  and 
New^  Granada  by  which  the  United  States,  as  an  independent  i)Ower, 
without  even  a  suggestion  of  British  co-operation,  was  to  guarantee  a 
railroad  to  form  the  instrument  of  iuteroceanic  commerce  then  clam- 
oring for  such  a  transit  (see  snjrra,  §  145).  Of  this  Great  Britain  had 
full  notice.  She  had  full  notice  also  from  the  very  condition  of  things 
as  they  then  existed,  informed  as  she  was  by  her  numerous  agents 
on  the  spot,  and  impelled  by  her  vast  interests  at  stake,  that  in  1850 
the  Panama  IJailroad  was  organized,  and  that  it  went  into  oi)eration, 
under  the  management  exclusively  of  citizens  of  the  United  States, 
in  1855.  She  has  had  this  notice,  and  she  not  only  has  stood  acqui- 
escingly  by  while  vast  amounts  of  ca[)ital  belonging  to  citizens  of  the 
United  States  have  been  invested  in  this  road,  but  she  has  reaped 
the  advantages  of  this  outlay  in  the  enjoyment  of  tolls  the  same  as 
those  imposed  on  all  other  customers  of  the  transit  it  secures.  During 
all  this  time  she  has  uttered  not  one  word  of  warning.  She  has  not 
only  stood  silent  while  all  these  great  treasures  of  energy  and  cajiital 
were  poured  into  this  road,  never  uttering  one  word  to  intinuite  that 
she  contested  the  exclusive  title  under  which  alone  these  expenditures 
were  or  could  have  been  made,  but,  without  taking  the  risk  or  con- 
tributing to  the  outlay  or  enduring  the  burdens,  has  reaped  the  full 
benefits  of  the  adventure.     She  cannot  now  lift  her  voice  to  contest  the 

242 


CHAP.  VI.]  GREAT  BEITAIN:  CLAYTON-BULWER  TREATY,  1850.    [§150/ 

title  on  which  these  expeuditures  were  based;  nor,  to  do  her  justice, 
has  she  made  such  a  chiim.  Yet,  uot  making-  such  a  chdm  as  to  the 
Panama  Eailroad,  is  equivalent  to  not  n)akiug  it  to  Isthmus  transit  as 
a  whole.  The  very  fact,  as  we  have  just  seen,  that  at  the  time  when  a 
notice  of  interference  from  her  would  have  stopped  the  building,  under 
its  then  auspices,  of  the  Panama  road,  she  gave  no  such  notice,  shows 
that  no  claim  to  a  joint  protectorship  of  all  such  modes  of  transit  was 
contemplated  by  her  at  a  time  when  the  circumstances  of  the  execution 
of  the  treaty  was  fresh  in  her  mind.  And  what  she  did  not  assert  then, 
each  additional  year  of  toil  and  investment  by  citizens  of  the  United 
States  in  the  Panama  Eailroad,  under  her  observation  and  to  her  ben- 
efit, but  without  her  protest,  has  placed  an  additional  barrier  in  the 
way  of  her  asserting  such  adverse  claiai  now.  And  to  surrender  the 
claim  by  implication  as  to  one  line  of  transit,  surrenders  it  by  implica- 
tion as  to  all. 

5.  For  Great  Britain  to  assume  in  whole  or  in  part  the  protectorate 
of  the  Isthmus  or  of  an  interoceanic  canal,  viewing  the  term  protector- 
ate in  the  sense  in  which  she  viewed  it  in  respect  to  the  Belize  and  the 
Mosquito  country,  would  be  to  antagonize  the  Monroe  doctrine  {mpra, 
§  57) ;  and  for  the  United  States  to  unite  with  her  in  such  a  protector- 
ship would  be  to  connive  at  such  an  antagonism.  The  Chiyton  Bulwer 
treaty,  if  it  were  to  be  construed  so  as  to  put  the  Isthmus  under  the  joint 
protectorate  of  Great  Britain  and  the  United  States,  would  uot  only  conflict 
with  the  Monroe  doctrine,  by  introduciuga  European  power  iutothe  man- 
agement of  the  affairs  of  this  continent,  but  it  would  be  a  gross  depart- 
ure from  those  traditions,  consecrated  by  the  highest  authorities  to 
which  we  can  appeal,  by  which  we  are  forbidden  to  enter  into  "  entan- 
gling alliances"  with  European  powers.  {tSupra.,  §§  io,  57,  72.)  iS^o  "  alli- 
ance" could  be  more  "  entangling"  than  one  with  Grea:  Britain  to  con- 
trol not  merely  the  Isthmus  but  the  interoceanic  trade  of  this  continent ; 
no  introduction  of  a  foreign  power  could  be  more  fatal  to  the  policy  of 
]\Ir.  Monroe,  by  which  America  was  to  be  precluded  from  being  the 
theater  of  new  European  domination,  than  that  which  would  give  to 
Great  Britain  a  joint  control  of  the  continent  in  one  of  its  most  vital 
interests.  But  this  objection,  it  is  important  to  understand,  applies  to 
"protectorship"  by  a  great  European  power,  not  to  "  neutralization"  by 
whicli  the  "  neutrality  "  of  the  Isthmus  is  settled  by  all  the  great  powers 
of  the  world.  (See  Professor  Holland  on  the  Suez  Canal,  Fortnightly 
Keview,  July,  1883.)  To  constitute  "neutralization"  in  the  sense  in 
which  W3  speak  of  the  "  neutralization  "  of  Belgium  and  of  Switzerland, 
or  of  the  Dardanelles  or  of  the  Suez  Canal  (see  supra.,  §  40),  requires 
such  general  action.  An  edictof  France,  forinstance, declaring  Belgium 
"neutral,"  would  bind  only  France;  it  required  the  joint  action  of  the 
great  Euroi)ean  powers  to  make  lielgium  what  she  now  is,  a  barrier  be- 
tween France  and  Germany,  which  neither  can  overpass  without  bring- 
ing on  the  ottending  party  the  si)eedy  interference  of  the  other  guaran- 
teeing powers.  Such  an  international  agreement,  entered  into  by  all  the 
great  powers,  would  not  be  in  conflict  with  the  Monroe  doctrine  in  the 
sense  above  given.  For  an  agreement  tliat  no  ])owers  whatever  should 
be  permitted  to  invade  the  neutrality  of  an  Isthmus  route,  but  that  it 
should  be  aI)solntely  neutralized  so  as  to  i)rotect  it  from  all  foreign  as- 
sailants by  whom  its  freedom  sliouhl  be  imi)eril('d,  is  an  ai)plication, 
not  a  contravention,  of  the  Monroe, doctrine.  Such  an  agreement  is  not 
an  approval  of,  but  an  exclusion  of,  foreign  interposition. 

243 


§  150^.]  TREATIES.  [criAP.  VI. 

G.  It  is  not  iucoiisisti'ut  with  such  :in  elioctivc  ueutrnli/atioti,  «\stab- 
lislicMl  by  the  action  of  the  jiieat  i)o\veis,  that  to  the  United  States 
should  be  assio-ned  a  juvdoniinant  iiilluence  in  the  uianajienient  of  the 
Lesseps  canal,  should  that  canal  be  put  intooi)eiation.  In  Mr.  T.J.  Law- 
rence's essay  on  the  "^Means  ol'  neutralizing'  the  (/anal"  (Essays,  etc.,  by 
T.  J.  Lawrence,  deputy  professor  of  international  law.  Cainbridj^e,  1884), 
it  is  said  that  if  the  jiosition  were  taken  "that  the  United  States  have 
{>rown  so  <ireat  since  the  treaty  of  LS.IO  was  sif^ned,  and  their  int<>rests 
in  tiie  canal  are  so  superioi'  to  those  of  any  other  i)ower,  that  they  0'if;ht 
to  ha\e  a  })re|»onderat  in^  voic<'  in  deterniininj;  the  rules  to  be  a(loi)ted," 
"such  a  position  would  have  been  impregnable  ;"  and  this  statement 
is  none  the  less  cllecti\e  from  the  fact  that  Mr.  Lawrence's  work  con- 
tains the  ablest  ar^^uinent  that  has  been  i)ubli.N!H'd  in  behalf  of  the  con- 
tiiiuinji:  operation  of  the  treaty  of  LSoO  on  all  ])iesent  or  future  inter- 
oceanic  routes.  Xor  coidd  Great  Britain  take  any  other  ])osition.  The 
Suez  Canal,  so  Great  Britain  claims,  is  "neutralized;"  yet  she  has  as- 
sumed a  piedominant  control  over  that  canal,  and  this  control  has  been 
acquiesced  in  by  the  other  {^reat  powers  interested. 

]\Ir.  D.  L.  Seymour's  rei)ort  of  February  11,  1853,  on  reciprocal  trade 
with  British  ]S'orth  America  is  found  in  House  Hep.  4,  3Ud  Conj^.,  2d 
sess.     (See  App.,  vol.  iii,  §  150/.) 

Ah  to  retiprocity  treaty  of  Jim.  2>i,  lb54,  see  k-tter  from  Mr.  Chase,  Sec.  of  tho 
Treasury,  Jan.  28,  18W,  House  Ex.  Doc.  32,  liSth  Cong.,  1st  sess.  See  also 
House  Ex.  Doc.  96,  3tJth  Cong.,  1st  sess. ;  House  Eep.  22,  37th  Conjj.,  2fl  sess. 

Under  the  reciprocity  treaty  between  the  United  States  and  Great 
Britain  of  1854  the  President  cannot  issue  his  proclamation  giving  ef- 
fect to  the  treaty  as  to  Canada  alone,  in  anticipation  of  the  action  of 
New  Brunswick,  Xova  Scotia,  and  Prince  Edward's  Island,  nor  until  he 
shall  have  received  evidence,  not  only  of  tho  action  of  these  provinces, 
but  also  of  the  Imperial  Parliament, 
(i  Op.,  748,  Gushing,  1854. 

The  convention  of  1854  for  mutual  reciprocity  of  trade  with  Canada, 
terminated  by  notice,  did  not  oi)erate  to  release  a  forfeiture  previously 
incurred. 

Pine  Lumber,  4  Blatch.,  182. 

The  draft  of  the  treaty  between  Mr.  Dallas  and  Lord  Clarendon,  of 
August  27,  1850,  will  be  found  in  Brit,  and  For.  St.  Pap.  for  1850-57) 
vol.  47,  001. 

(//)  Tkeaty  of  Washixgtox  (1871)  AXD  Gknkva  tuiijunal. 

§  150^/. 

The  rules  laid  down  by  the  treaty  of  Washington  and  applied  by  the 
Geneva  tribunal  are  discussed  in  a  future  section,  m/rff,§  4i)2a. 
The  immediate  preliminaries  of  this  treaty  are  thus  stated: 
"Mr.  Fish,  when  he  became  Secretary  of  State,  hastened  to  say  to  Mr. 
Motley,  the  United  States  minister  at  London,  that  'the  President  rec- 
ognizes the  right  of  every  power,  when  a  civil  conllict  has  arisen  within 
another  state,  and  has  attained  a  sullicient  complexity,  magnitude,  and 
completeness,  to  define  its  own  relations  and  those  of  its  citizens  and 
244 


CHAP.  VI.]  GREAT    BRITAIN  :    TREATY    OF    1871.  [§  150^7. 

subjects  toward  the  parties  to  tbe  conflict,'  and  ibat  the  President  re- 
garded tbe  concession  of  tbe  rigbts  of  belligerence  to  tbe  insurgents 
'  as  a  part  of  tbe  case  only  so  iar  as  it  sbows  tbe  beginning  and  animus 
of  tbat  course  of  conduct  wbicb  resulted  so  disastrously  to  tbe  United 
States.' 

"Great  Britain  accepted  this  basis  for  tbe  resumption  of  negotiations; 
and  a  treaty  was  signed  on  tbe  Stb  of  May,  1871,  for  tbe  reference  to  a 
tribunal  of  arbitration,  to  be  convened  at  Geneva,  of  all  tbe  said  claims 
growing  out  of  acts  committed  by  tbe  aforesaid  vessels,  and  generically 
known  as  tbe 'Alabama  claims.'  Tbis  tribunal  was  empowered  to  de- 
termine wbetber  Great  Britain  bad  failed  to  faltill  any  of  its  duties  in 
respect  to  tbe  sul>ject  of  arbitration  as  set  forth  in  the  treaty;  and  In 
case  it  should  so  tind,  then  it  was  further  em])Owered  to  proceed  to 
award  a  sum  in  gross  to  be  i)aid  to  tbe  United  States  foi'  all  tbe  claims 
referred  to  it. 

'•On  tbe  organization  of  tbe  tribunal  at  Geneva  tbe  United  States 
preferre<l  their  claims,  with  a  statement  of  tbe  grounds  on  which  indem- 
nity was  asked.     *     *     * 

"  The  views  respecting  tbe  animus  of  Great  Britain  during  the  insur- 
rection, which  Mr.  Fish  had  announced  his  pur])ose  of  presenting  for 
the  consideration  of  any  tribunal  which  might  be  agreed  ui)ou  to  in- 
quire into  tbe  subject,  were  elaborated  and  made  tbe  basis  to  support 
the  whole  claim  for  compensation.  It  was  contended  upon  the  other 
side,  as  will  be  seen  by  reference  to  the  title  ^ Neutrals,^  that  the  tribunal 
should  assume  tbat  Great  Britain  had  exercised  its  powers,  during  tbe 
insurrection,  with  good  faith  and  reasonable  care,  until  tbe  assum])tion 
should  be  'displaced  by  proof  to  the  contrary'  jjresented  on  behalf  of 
tbe  United  States. 

"In  tbe  proceedings  which  followed,  the  United  States  demanded  com- 
pensation lor  tbe  following  classes  of  losses  and  expenditures,  so  far  as 
they  giew  out  of  tbe  acts  of  tbe  cruisers,  viz :  1.  '  Direct  losses  growing 
out  of  the  destruction  of  vessels  and  their  cargoes.'  2.  'The  national 
expenditures  in  the  pursuit  of  those  cruisers.'  3.  'The  loss  in  tbe 
transfer  of  tbe  American  Commercial  Marine  to  the  British  flag.'  4. 
'The  enhanced  payments  of  insurance.'  5.  'The  prolongation  of  the 
war,  and  tbe  addition  of  a  large  sum  to  the  cost  of  the  war  and  the 
8ui)pression  of  the  rebellion.'  It  was  denied  by  Great  Britain  that  a 
submission  of  all  tbe  claims  to  arbitration  carried  with  it  the  right 
of  tbe  arbitrators  to  take  into  consideration  all  the  elements  of  loss, 
and  it  was  insisted  that  tbe  tribunal  bad  no  right,  under  tbe  terms  of 
tbe  treaty,  to  take  classes  tbree,  four,  and  live  into  consideration  in  its 
estimate  of  damages.  Tbe  United  States  denied  this  proposition,  and 
contended  that  the  tribunal  was  invested  with  i)Ower  to  decide  tbe 
fjuestion  of  tbe  extent  of  its  jurisdiction.  (See  on  this  ]K)int  infra,  §§ 
238,  329«.)  Tbe  tribunal,  without  deciding  tbe  question,  held  that 
'these  claims  do  not  constitute,  upon  tbe  principles  of  international 
law  applical)le  to  such  cases,  good  foundation  for  an  award  of  com- 
pensation or  computation  of  damages  between  nations,  and  should, 
upon  such  ])iinciples,  be  wholly  excluded  from  the  consideration  of 
the  trii)unal,  in  making  its  award-,  even  if  there  were  no  disagree- 
n)ent  between  tbe  two  Governments  as  to  tbe  competency  of  the 
tribunal  to  decide  thereon.'  And  in  regard  to  the  second  of  tbe 
above  items  of  loss,  the  tribunal,  in  its  awai<l,  decided  thus:  '  Whereas, 
80  far  as  relates  to  the  particulars  of  the   indemnity  claimed  by  the 

245 


§  150^.]  TREATIES.  [chap.  VI. 

United  States,  the  costs  of  i)uisuit  of  (he  Confederate  eiuisera  are 
not,  in  the  judgment  of  the  tiibnnal,  pro]»rily  distingiiishaV)k'  Ironi  the 
general  e\i)ensc*s  of  the  war  carried  on  by  the  United  States:  The  tri- 
bunal is  theielore  of  opinion,  by  a  majority  of  three  to  two  voices,  that 
there  is  no  ground  for  awarding  to  the  United  States  any  sum  by  way 
of  indemnity  under  this  head.'  The  tribunal  awarded  to  the  United 
States  the  sum  of  fifteen  and  one-half  millions  of  doUars  in  full  satisfac- 
tion of  tiie  claims  referred  to  it. 

"Under  the  same  treaty  a  commission  was  organized  at  Washington 
to  adjudicate  upon  private  claims  of  citizens  of  each  against  the  other 
power  arising  out  of  acts  committed  against  the  i»ersons  or  pi(>i)erty  of 
their  citizens  during  a  period  which  was  assumed  to  be  the  period  of 
the  existence  of  the  insurrection.  The  language  of  the  submission  in 
the  treaty  was  selected  by  the  negotiators  with  the  object  of  excluding 
from  the  consideration  of  the  arbitrators  a  class  of  claims  known  as  the 
Confederate  cotton  debt,  which  the  Secretary  of  State  informed  the 
IJritish  minister  that  the  United  States  would  not  consent  to  refer.  Such 
claims  were,  however,  presented  before  the  comniission  by  the  British 
agent.  The  United  States  made  ])olitieal  representations  against  this 
infraction  of  the  treaty,  and,  i)ending  a  discussion  ujjon  it,  the  commis- 
sioners dis])osed  of  the  question  by  deciding  against  the  claims  on 
their  merits." 

Mr.  .J.  C.  B.  Davis,  Notes,  &c. ;  see  infra,  §  402a. 

Under  article  30  of  the  treaty  of  1871  a  British  vessel  maj-,  in  the 
course  of  a  single  voyage,  ship  goods  at  two  or  more  successive  United 
States  ports  on  the  lakes,  for  delivery  partly  through  Canada  by  land 
in  bond,  at  other  United  States  ports;  and  then,  after  completing  her 
cargo,  sail  to  the  Canada  port  where  the  land  carriage  is  to  begin. 

14  Op.,  310,  ^Yilliaras,  1873. 

Under  article  30  of  the  treaty  of  Washington,  of  1871,  and  article  19 
of  the  regulations  made  under  the  first-mentioned  article  to  carry  its 
provisions  into  execution,  it  is  lawful  to  transport  goods  by  means  of 
British  or  American  vessels  from  the  ports  of  Chicago  or  Milwaukee  to 
points  in  Canada,  thence  through  Canadian  territory  by  rail,  and  from 
the  termini  of  the  lines  of  railway  by  either  British  or  American  vessels 
to  the  ports  of  Oswego  and  Ogdensburgh,  all  the  above  named  ports  be- 
ing "  ports  on  the  northern  frontier  of  the  United  States,"  within  the 
meaning  of  said  regulations. 
IG  Op.,  42,  Devens,  1878. 

"The  provisions  of  the  concluding  paragraphs  of  the  11th  article  of 
the  Universal  Postal  Convention  of  Paris  reserve  to  the  Government 
of  each  country  of  the  postal  union  4^he  right  to  refuse  to  carry  over  its 
territory,  or  to  deliver  articles  in  regard  to  which  the  laws,  ordinances, 
or  decrees,  which  regulate  the  conditions  of  their  publication  or  of  their 
circulation  in  that  country  have  not  been  complied  with."   Hencca  law 

246 


CHAP.  VI.]  IIANSEATIC    REPUBLICS — HAWAII.  [§§  151,  151a. 

of  the  British  Goverumeut,  exclndiug  certain  classes  of  publications 
from  Great  Britain,  is  not  inconsistent  with  that  convention. 

Mr.  Blaiue,  Sec.  of  State,  citing  Mr.  James,  Postuiaster-Geuenil,  to  Mr.  Ford, 

June  18,  1881.     MSS.  Dom.  Let. 
For  a  review  of  the  treaty  of  Washington  and  the  Geneva  arbitration,  see  3 

Phill.  Int.  Law  (3  ed.),  251  #. 

(13)  Haxseatic  Rkpublics. 

§  151. 

Under  article  9  of  the  treaty  with  the  Hanseatic  Eepublics  of  De- 
cember 20,  1827,  together  with  article  4  of  the  treaty  with  Belgium  of 
1858,  steam  vessels  of  Bremen,  plying  regularly  between  that  iiort  and 
the  United  States,  have,  during  the  entire  period  subsequent  to  the 
date  of  the  ratification  of  said  treaty  with  Belgium,  been  exempt  from 
tonnage-tax  in  American  ports,  by  force  of  article  9  of  said  treaty  with 
the  Hanseatic  Eepublics  and  are  entitled  to  a  refund  of  any  such  tax 
which  has  been  collected  from  such  vessels  in  American  ports  at  any 
time  within  that  period. 

14  Op.,  530,  Williams,  1875;  see  Infra,  $  162. 

(14)  Hawaii. 

§  151a. 

Questions  concerning  intervention  in  Hawaii  are  discussed,  snpraj 
§62. 

"  In  the  year  182G  Thomas  Ap  Catesby  Jones,  commanding  the  United 
States  sloop  of- war  Peacock,  signed  articles  of  agreement  in  the  form 
of  a  treaty  with  the  King  of  the  Hawaiian  Islands.  The  Hawaiians 
professed  to  have  observed  this  as  a  treaty,  but  it  was  not  regarded  as 
such  by  the  United  States. 

"In  December,  1842,  the  'duly  commissioned'  representatives  of  King 
Kamehauieha  III  proposed  to  Mr.  Webster,  Secretary  of  State,  to  con- 
clude a  treaty  whenever  the  sovereignty  of  the  King  should  be  recog- 
nized. In  support  of  their  proposal  they  said,  '  Twenty-three  years  ago 
the  nation  had  no  written  language,  and  no  character  in  which  to  write 
it.  *  *  *  The  nation  had  no  fixed  form  or  regulations  of  govern- 
ment except  as  they  were  dictated  by  those  who  were  in  authority,  or 
might  by  any  means  acquire  i)ower.  *  *  *  But  under  the  fostering 
inllnence,  patronage,  and  care  of  His  Majesty,  and  that  of  his  prede- 
cessors, the  languages  has  been  reduced  to  visible  and  systeuuitized 
form,  and  is  now  wi  itten  by  a  large  and  respectable  portion  of  the  peo- 
ple. •  *  *  A  regular  monarchical  government  has  been  organized 
of  a  limited  and  icpresentative  character.  #  *  *  A  code  of  laws, 
l»()tli<;ivii  an(lcririiinal,liasbeen  enacted  and  ])ublished.  *  *  *  Their 
I)ositi()n  is  sucii  that  they  constitute  the  great  center  of  whale-fishery 
for  most  of  the  world.  Tiiey  are  on  the  i)rincipal  line  of  communica- 
tion between  the  western  continent  of  Ameri(;a  and  the  eastern  conti- 
nent of  Asia  ;  and  sucli  are  tiic  ])revailing  winds  on  that  ocean  that  all 
vessels  requiring  repairs  or  supplies,  either  of  provisions  or  of  water, 

247 


^  152.]  TREATIES.  [chap.  VI. 

naturally  touch  at  those  ii^Iauds,  wlu'thor  tho  vessels >sail  iVou)  Columbia 
Iviver  of  tlu' North,  or  IVoni  the  far  distant  ports  of  ;Moxi('0,  Central 
Ainciica,  or  l*('ru  upon  the  south.' 

"Mr.  Webster  replied,  'The  United  States  have  repirded  the  exist- 
ing: authorities  in  the  Jiandwieh  Islands  as  a  Goveininent  suited  to  the 
condition  of  the  i)eople,  and  r<'stin<;-  on  their  own  choice,  and  the  Presi- 
dent isof  opinioai  that  the  interests  of  all  the  coiuinercial  nations  require 
that  that  (Jovernnient  shoidd  not  be  interfered  with  by  foreif::n  jjowers. 
*  *  *  The  I'resident  does  not  see  any  ])resent  necessity  for  the  ne- 
gotiation of  a  formal  treaty.'  It  was  not  until  ISK)  that  a  treaty  was 
concluded. 

"Under  this  treaty  it  was  held  by  Attorney-General  Speed  (June  2C, 
18(10),  that  the  consular  courts  at  Honolulu  have  the  i)ower,  without  in- 
terference fioui  local  courts,  to  deteriiiiiu',  as  between  citizens  of  the 
United  States,  who  couii)rise.  the  crew  of  an  Anicricau  vessel,  and  are 
bound  to  fulill  the  obligations  iin])osed  by  th<'  slii])ping  article." 

Mr.  J.  C.  B.  Davis, Notes,  A.  . 

^Ir.  Fernando  Wood's  rejiort  on  the  bill  to  carry  into  effect  the  Ha- 
waiian treaty  of  1875  is  given  in  House  Kep.  110,  44th  Cong.,  1st  sess. 

(15)  Italy. 
§152. 

"By  direction  of  your  Government  you  make  two  points  concerning 
that  convention  (of  Feb.  8,  IStJS).  The  first  you  present  in  the  follow- 
ing words:  '  First,  in  Article  XIII,  line  2,  by  the  word  "  oflicers"  of  a 
sbip,  the  Italian  Government  presumes  that  you  includ<»  the  captain. 
You  will  please  inform  me  if  that  is  so.' 

"  I  answer  directly  that  I  understand  the  word  '  officers  '  of  a  ship 
to  include  the  captain. 

"In  the  second  place  you  say,  '  My  Government  supposes  you  would 
like  to  continue  a  common  reciprocity  in  Italian  ports  not  mentioned  in 
the  convention,  which  is,  that  your  consuls  be  notified  l)y  the  Italian 
authorities  of  certain  visits  they  are  sometimes  compelled  to  make  on 
board  American  merchant  vessels.  Hoping  you  will  give  the  Federal 
authorities  instructions  to  grant  these  reciprocal  favors  to  Italian  con- 
suls, my  Government  will  iiot  fail  to  issue  similar  iiistructions  to  the 
proper  authorities  in  Italy.  In  health  visits  to  an  arriving  ship  and  in 
many  other  customary  visits,  where  the  consul's  presence  could  be  of 
no  use  such  notice  is  not  necessary.' 

"  In  regard  to  this  point,  the  visits  which  1  understand  you  to  mean 
are  such  visits  as  are  made  where  the  search  of  a  merchant  vessel,  for 
fiscal  purposes,  is  instituted  by  the  local  authorities  in  the  ports  of 
either  party. 

"It  is  in  regard  to  these  visits  that  you  suggest  that  the  consul  of 
the  nation  whose  flag  the  vessel  bears  shall  be  notified  of  the  intended 
visit. 

248 


CHAP.  VI.]  ITALY.  [§  152. 

"I  have  the  lionor  to  say  that  the  suggestiou  seems  a  very  suitable 
one,  and  that  tlie  ])ropcr  instructions  will  be  given  to  the  collectors  of 
customs  in  the  ports  of  the  United  States  to  comply  with  the  request 
of  the  Italian  GoYerument,  with  the  understanding  that  reciprocal  pro- 
ceedings will  be  adopted  by  that  Government. 

"  With  what  may  seem  to  you  extreme  caution  T  am  to  inform  you 
that  the  assurances  given  in  this  letter  are  only  assurances  which  this 
Department  makes  for  itself,  and  cannot  be  taken  as  constituting  a  part 
of  a  consular  treaty  for  modifying  its  provisions.     *     *     * 

"I  have  no  hesitation  in  saying  that  the  words  ' infamous  punish- 
ments '  {peines  infamaiites)  contained  in  paragraph  8,  Article  II,  of  the 
convention  of  March  23,  1SG8,  are  to  be  understood  as  applying  to  the 
reciprocal  description  of  punishment  for  crimes  prevailing  in  Italy  just 
as  it  is  expressed  in  the  text  of  the  Italian  Code. 

"  This  opinion  of  the  Department,  however,  must  not  be  understood 
as  legally  modifying  the  language  of  the  convention." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Cerruti,  Sept.  15, 1868.  MSS.  Notes.  Italy. 
This  opinion  is  virtually  embodied  in  a  treaty  for  this  purpose  proclaimed 
May  11,  1869. 

Under  the  convention  of  18G8,  a  person  may  be  surrendered  for  the 
crime  of  murder  committed  before  the  making  of  the  convention. 

In  re  Giacomo,  12  Blatch.,  391. 

The  liability  of  the  government  of  the  Two  Sicilies  for  the  spoliations 
directed  bv  Murat  when  King  of  j^aples  has  been  elsewhere  incident- 
ally noticed.  See  supra,  §§  5,  137;  wfra,  §§  230,  317.  This  liability 
was  ineftectualiy  pressed  on  the  government  of  the  Two  Sicilies  by  Mr. 
Pinkney  in  1810.  The  question  remained  open  until  the  first  session  of 
the  Twenty-lirst  Congress,  when  President  Jackson,  in  his  opening-  mes- 
sage, said: 

"Our  demands  upon  the  Government  of  the  Two  Sicilies  are  of  a 
peculiar  nature.  The  injuries  on  which  they  are  founded  are  not  denied, 
nor  are  the  atrocity  and  perfidy  under  which  those  injuries  were  ])erpe- 
tratf'd  attempted  to  be  extenuated.  The  sole  ground  on  which  indem- 
nity has  been  refused  is  tlie  alleged  illegality  of  the  tenure  by  which 
the  monarch  who  made  the  seizures  held  his  crown.  This  defense, 
always  unfounded  in  any  principle  of  the  law  of  nations,  now  univer- 
sally abandoned,  even  by  those  powers  upon  whom  the  responsibility 
for  acts  of  past  rulers  bore  the  most  heavily,  will  unquestionably  bo 
given  up  by  his  Sicilian  Majesty,  whose  counsels  will  receive  an  impulse 
from  that  high  sense  of  honor  and  regard  to  justice  which  are  said  to 
characterize  iiim;  and  I  feel  the  fullest  con tidcnce  that  the  talents  of 
the  citizen  commissioned  for  that  purpose  will  place  before  him  the  just 
claims  of  our  injured  citizens  in  such  a  light  as  will  enable  me,  before 
your  adjoujiimeiit,  to  announce  tliat  they  have  been  adjusted  and  se- 
cured." 

The  application  under  this  (inal  ai)i)('al  was  successful,  and  two  years 
afterward  llie  I'resident  informed  Congnvss  that  tlie  ratifications  of  a 
convention  for  the  settlement  of  these  chiims  had  been  duly  exehanged. 
The  act  to  carry  this  into  ellect  was  passed  on  the  2(1  of  March,  1833. 
(See  discussion  detailed  infra^  §  230.) 

2-iU 


§  153.]  TREATIES.  [chap.  YI. 

"With  the  Papal  States  the  United  States  maintained  diplomatic 
relations  tor  many  years;  bnt,  in  18(i.S,  Conuress  ne;>lected  to  make 
appropriations  tor  the  snpi)ort  ol' a  mission,  and  the  minister  was  with- 
drawn. In  his  annual  message  to  Conjiiess  in  1S71  President  Grant 
said:  'I  have  been  otlicially  informed  ot  the  annexation  of  the  States 
of  the  Church  to  the  Kinj^dom  of  Italy,  and  the  ienu)val  of  the  capital 
of  that  Kingdom  to  Komo.  In  conformity  with  the  established  i)olicy 
of  the  United  States,  I  have  recognized  this  change.'" 

Mr.  J.  C.  B.  Davis,  Notes,  &c.    As  to  recognitiou  of  Papal  authority,  see  si/jjra, 
As  to  .Sicilian  spoliations,  see  infra,  $$  2*28,  23G. 

(id)  Japan. 
§  153. 

"  'islw  Edmund  Poberts,  a  sea  captain  of  Portsmouth,  X.  IT.,  was 
named  by  President  Jackson  his  'agent  for  the  ]»urj)ose  of  examining 
in  the  Indian  Ocean  the  means  of  extending  theconimerce  of  the  United 
States  by  commercial  arrangements  with  the  powers  whose  dominions 
border  on  those  seas.'  He  wa.s  ordered  on  the  27th  of  .lanuarj^,  l.'^32,  to 
'  embark  on  board  of  the  United  States  sloop  of-war  the  Peacock,' in 
which  he  was  to  '  be  rated  as  captain's  clerk.'  On  the  23d  of  the  fol- 
lowing July  he  was  told  to  '  be  very  careful  in  obtaining  information 
respecting  Japan,  the  means  of  oi)ening  a  communication  with  it,  and 
the  *  *  *  value  of  its  trade  with  the  Dutch  and  Chinese,'  and  that 
when  he  should  arrive  at  Canton  he  would  ])robal)ly  receive  further  in- 
structions, lie  had  with  him  blank  letters  of  credence,  and  on  the  28tU 
of  October,  1832,  Edward  Livingston,  Secretary  of  State,  instructed  him 
that  the  United  States  had  '  it  in  contem])lation  to  institute  a  separate 
mission  to  Jai)an,'  but  that  if  he  should  find  the  prospect  iavorable  he 
might  fill  up  one  of  his  letters  and  j^resent  himself  to  the  lOmperor  for 
the  purpose  of  opening  trade.  Nothing  was  accom]>lislied  by  this 
mission  in  that  quarter. 

"Again,  in  1845,  Alexander  Everett  was  empowered  to  open  nego- 
tiations with  the  Japanese  Clovernnient,  and  Commodore  Biddle  was 
instructed  to  'take  the  utmost  care  to  ascertain  if  the  ports  of  Japan 
were  accessible.'  The  commodore  did  go  to  the  Bay  of  Yeddo,  and  re- 
mained there  several  days.  The  Japanese  refused  to  open  their  ports. 
They  said,  '  This  has  been  the  habit  of  our  nation  from  time  immemo- 
rial. In  all  ca.ses  of  a  similar  kind  that  have  occuried  we  have  posi- 
tively refused  to  trade.  Foreigners  have  come  to  us  from  various  quar- 
ters, but  have  always  been  received  in  the  same  way.  In  taking  this 
course  with  regard  to  you,  we  only  i)ursue  our  accustomed  jyolicy.' 

"  In  the  sjiring  of  1849  it  came  to  the  knowledge  of  Commodore  Geis- 
inger,  commanding  the  United  States  East  India  Squadron,  that  some 
American  sailors  were  imprisoned  in  Japan,  and  Commander  Glynn 
was  dispatched  to  Nagasaki  to  liberate  them.  He  succeeded  in  doing 
so,  and  on  his  return  he  laid  before  the  President  reasons  why  he 
thought  it  to  be  '  a  favorable  time  for  entering  upon  a  negotiation  with 
Japan.' 

"  The  Dutch  Government  at  that  time  had  the  monopoly  of  the  for- 
eign trade  of  Japan.  The  Dutch  minister  at  Washington,  under  in- 
structions from  his  Government,  at  this  juncture,  informed  the  Govern- 
ment of  the  United  States  that  it  was  not  to  be  supposed  that  there 

250 


CHAP.  YI.]  JAPAN.  [§  153. 

was  '  any  modification  whatever  of  the  system  of  separation  and  exclu- 
sion which  was  adopted  more  than  two  centuries  ago  by  the  Japanese 
Government,  and  since  tlie  establishment  of  which  the  prohibition 
against  allowing  any  foreign  vessel  to  explore  the  Japanese  coast  has 
been  constantly  in  force.' 

"3Ir.  Webster,  Secretary  of  State,  soon  after  the  receipt  of  this  note, 
instructed  Commodore  Aulick  to  proceed  with  a  letter  from  President 
Fillmore  to  the  Emperor  of  Japan  to  Yeddo  in  his  flag-ship,  accompanied 
by  as  many  vessels  of  his  squadron  as  might  conveniently  be  employed 
in  the  service,  and  to  deliver  it  to  such  high  officers  of  the  Emperor  as 
might  be  appointed  for  the  purpose  of  receiving  it.  The  principal  ob- 
ject of  his  visit  was  to  arrange  for  obtaining  supplies  of  coal,  but  he 
also  received  '  full  power  to  negotiate  and  sign  a  treaty  of  amity  and 
commerce  between  the  TTnited  States  and  the  Empire  of  Japan.'  This 
was  in  June,  1851.  In  ^November,  1852,  Commodore  Perry  was  sent  out 
with  an  increased  naval  force.  'A  copy  of  the  general  instructions 
given  to  Commodore  John  H.  Aulick '  was  handed  him,  which  he  was 
to  consider  as  '  in  full  force,  and  applicable  to  his  command.'  He  suc- 
ceeded in  concluding  a  treaty  on  the  31st  of  ^March,  1854.  The  inter- 
esting negotiations  which  preceded  it  are  detailed  in  the  document 
above  referred  to.  An  account  of  the  expedition,  from  the  journals  of 
Commodore  Perry  and  officers  under  his  command,  was  compiled  by 
the  Eev.  Francis  L.  Hawks,  D.  D.,  and  printed  in  quarto  form  by  order 
of  the  House. 

"  The  rights  of  Americans  in  Japan  were  fnrther  extended  by  a  con- 
vention concluded  at  Simoda  on  the  17th  of  June,  1857;  and  in  the  fol- 
lowing year  a  more  extensive  treaty  was  concluded,  in  which  it  was 
provided  that  all  the  provisions  of  the  convention  of  1857,  and  so  much 
of  the  treaty  of  1854  as  were  in  conflict  with  the  new  treaty  were 
revoked. 

"In  1859  it  was  determined  to  send  a  Japanese  embassy  to  the  United 
States;  and  this  was  done  in  18G0.  In  1864  a  convention  was  concluded 
for  the  payment  to  the  United  States,  Great  Britain,  France,  and  the 
Netheilands  of  an  aggregate  sum  of  threemillions  of  dollars,  'this  sum  to 
inclnde  all  claims  of  whatever  nature,  for  i)ast  aggressions  on  the  part 
of  I^^agato,  whether  indemnities,  ransom  for  Simonoseki,  or  expenses 
entaih^l  by  the  operations  of  the  allied  squadrons.'  The  circumstances 
which  led  to  the  conclusion  of  this  treaty  were  thus  stated  by  j\Ir.  Fish 
in  a  rei)ort  to  the  President :  '  The  Japanese  indemnity  fund  comes  from 
])ayments  made  by  the  Japanese  Government  under  the  convention  of 
October  22,  1804,  of  which  a  co])y  is  herewith  inclosed.  It  appears  that 
Prince  Choshu,  the  ruler  over  the  provinces  of  Sueooand  Xagato,  having 
l)OSsession  of  the  Japanese  fortifications  whi(;h  command  the  Straits  of 
Simonoseki,  and  also  having  with  him  tlie  person  of  (he  ^likado,  refused 
to  recognize  the  validity  of  the  treaties  concluded  by  the  Tycoon  with 
the  foreign  jjowers,  ami  closed  the  ])assage  to  the  inland  sea.  At  the 
request  of  the  Tycoon's  government  the  forces  of  the  United  States, 
Great  I^ritain,  France,  and  the  Netherlands,  in  those  waters,  jointly 
proceeded  to  ojx'n  the  straits  by  force.  On  the  4th, (Jth, 7th,  and  8tli  days 
of  Se[)tembcr,  1804,  they  destroyed  thebatterries  commanding  thestraits, 
blew  nj)  the  magazines,  threw  the  shot  and  shell  into  the  sea,  carried 
away  seventy  cannon,  an<l  obtained  an  unconditional  snrreiKler  from 
Prince  Chosliu,  with  an  agreement  to  i)ay  the  expenses  of  the  expedi- 
tion. The  ratification  of  the  treaties  by  the  .Alikado,  and  the  firm  estab- 
lishment of  the   foreign   ])oliev  of  the  Tycoon  also,  speedily  followed. 

251 


§  153  ]  TREATIES.  [chap.  VI. 

The  Goveiiunont  of  the  Tycoon,  ])referrin^  to  assnine  the  expenses  of 
the  expedition,  whieh  the  rebellions  prince  had  ii^reed  to  pay,  entered 
into  tlie  convention  of  October  Uli,  18()4,  stipnhitin;;:  to  i)ay  tlie  four 
powers  three  udllions  of  (U)lhirs,  '  tliissuni  to  inchide  all  claims,  of  what- 
ever niitnic,  for  i)ast  a^'^ressions  on  the  part  of  >ia<;ato,  wheiher  indem- 
nity, ransom  for  Sinionoseki,  or  expenses  entailed  by  the  operation  of 
the  allied  squadrons,' '  the  whole  sum  to  be  i)ayab  e  quarterly,' in  in- 
stalhnents'of  half  a  nullion  of  dollars.'  One  million  and  a  halfof  doUars 
have  been  jKiid  under  this  convention,  and  one  million  and  a  halfof 
dollars  remain  unpaid.  The  .lapanese  (iovernment  havt'  asked  to  have 
the  ]»ayment  of  the  unpaid  balance  deleired  till  May  15,  1872,  on  terms 
set  forth  in  the  inclosed  correspondenci',  ;ind  this  (lovernment  has  con- 
sented as  to  its  ))()rtion  (one  t'ouith),  on  condition  that  the  olher  jiowers 
also  consent.  (Jf  the  amounts  alr<'ady  i)aid,  one-fonilh  came  to  the 
])Ossession  of  tiie  United  Stares,  which  ap])eais  to  have  yielded  to  its 
credit  with  JJiirin^'  iJrotlu'rs,  in  London,  the  sum  of  ei<ihty-ei;iht  thou- 
san<l  ei^ht  hundred  and  eighty-one  pounds  eiuiiteen  shillings  and  ten- 
])ence  sterlin<;-  (£88.881  18.s-.  Ukl  ).  1'his  tr;insferred  to  iS'ew  York,  pro- 
duced in  currency  the  sum  of  live  hundred  and  ei.i;hty-six  thousand  one 
hundred  and  twenty-five  (h)llars  and  eijihty-seven  cents  (d58(),lUu.87), 
which  was  invested  in  ten-forty  bonds  of  the  United  States  at  i)ar.  The 
interest  on  the  bonds,  as  accruin<T:,  has  been  invested  in  the  same  c^ass 
of  bonds.  The  disbursin.u'  clerk  of  the  Department  of  State  now  holds, 
as  beloniiinfj  to  this  fnnd,  such  resiistered  bonds  to  the  amount  of  seven 
hundred  and  five  thousand  dollars  (S70o,0(»())  at  par.  The  Secretary 
of  State  is  not  aware  of  any  claims  aji'ainst  this  fnnd.' 

"It  so  happened  that  there  was  no  vessel  in  the  naval  service  of  the 
United  States  that  was  in  a  condition  to  take  part  in  this  expedition. 
The  Ta  Kian^  was  therefore  chartered  for  the  service,  and  was  manned 
•with  a  crew  of  eij^hteen  persons  trom  the  Jamestown,  which,  with  her 
own  crew  of  forty,  made  a  crew  of  fitty  eij;ht  in  all.  The  Ta-Kian;^'  had 
three  guns,  and  received  one  thirty-pound  Parrott  gun  from  the  James- 
town. The  actual  cost  of  the  ex])editioii  to  the  United  States  was 
$9,500  for  the  charter,  and  $1,848  for  the  coal  consamed. 

"In  18G7  it  became  necessary  to  make  'arrangements  for  the  estab- 
lishment of  a  Japanese  municipal  office  for  the  foreign  settlement  of 
Yokohama.'  By  this  arrangement,  which  'was  adoi)ted  and  agreed  to 
by  the  foreign  representatives  and  the  Japanese  Government,'  'the 
principle  of  extraterritorialitj'  was  carefully  preserved,'  as  to  the  treaty 
powers. 

"In  a  recent  discussion  between  the  Japanese  minister  for  foreign 
afi'airs  and  the  Peruvian  envoy,  the  former  thus  speaks  of  this  agree- 
ment, and  its  relations  to  citizens  of  non-treaty  powers:  'It  was  a  tem- 
porary arrangement,  thought  essential,  say  the  foreign  ministers  who 
recommended  it,  "  binder  present  circumstances,  to  secure  the  maintenance 
of  order  and  health  within  the  foreign  settlement."  It  did  not  fix  any 
time  within  which  it  should  remain  in  force.  It  is  therefore  either 
binding  forever,  or  it  might  be  abrogated  at  the  pleasure  of  this  Gov- 
ernment. *  *  *  Peru  was  then  and  is  now  a  nou  treaty  power. 
Your  excellency  would  be  astonished  and  indignant  if  you  were  told  by 
the  officer  whom  Ilis  jMnJesty  the  Tenno  may  authoiize  to  negotiate 
with  you  a  treaty*  of  amity  and  commerce,  that  while  i)erfcctly  tree  on 
all  other  ])oints,  we  cannot  relieve  the  citizens  of  l\'ru  from  being  sub- 
ject to  coercive  jurisdiction  exercised  by  the  ni;iJority  of  a  board  of 
foreign  consuls.     You  would  ask,  I  think,  by  what  right  the  ministers 

252 


CHAP.  VI.]  MEXICO.  [§  154. 

of  Great"  Britaiu,  Fiance,  the  United  States,  Germany,  aud  Ilolland 
undertook  to  stij^ulate  m  what  manner  the  eitizeus  of  Peru  should  be 
tried.  *  *  *  ]f  the  ineteusions  of  some  of  the  consuls  were  admis- 
sible, that  they  had  a  rioht  not  only  to  give  advice,  but  that  their  ad- 
vice, or  that  of  a  majority  of  them,  should  be  controlling,  so  that  the 
governor  of  Kauagawa  would  be  only  a  mouthpiece  to  utter  their  de- 
cision, then  the  extraordinary  result  would  follow  that  this  Government 
might  be  made  responsible  to  a  foreign  nation  for  an  erroneous  de- 
cision, which  it  had  no  i)ower  to  prevent  or  reverse.'" 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

The  Government  of  the  United  States  had,  in  1852,  the  right  to  insist 
upon  Japan  entering  upon  such  treaty  relations  as  would  protect  trav- 
ellers aud  sailors  from  the  United  States  visiting  or  cast  ashore  on  that 
island  from  spoliation  or  maltreatment,  and  also  to  procure  entrance  of 
United  States  vessels  in  Japanese  ports. 

Mr.  Conrad,  Asst.  Sec.  of  State,  to  Mr.  Kennedy,  Nov.  5, 1852.     MSS.  Notes,  Spe- 
cial Missions.         ' 

A  United  States  consular  court  in  Japan  cannot,  under  the  treaty  of 
1858  with  that  country  and  the  laws  of  the  United  States  (12  Stat.  L., 
72;  Eev.  Stat.,  §  4083),  render  a  judgment  against  a  person  of  foreign 
birth  not  a  citizen  of  the  United  States. 

11  Op.,  474,  Speed,  18G6.     Seestipra,  ^  12o. 

As  to  treaties  on  consular  jurisdiction  in  Japan,  see  supra,  ^^  68,  125.     See  also 

Mr.   Eli  T.    Slieppard's  pamphlet  on   Extraterritoriality  in  reference  to 

Japan. 

Questions  concerning  intervention  in  Japan  are  discussed  supra,  §  68. 

(17)  Mexico. 

§  154. 

Ah  to  interitosition  in  Mexico,  see  supra,  §  58. 

As  to  Mexico's  restrictions  on  aliens,  see  infra,  §  172a. 

President  J.  Q.  Adams's  message  of  February  12,  1827,  transmitting 
the  Mexican  treaty  of  July  10,  1820,  with  the  accompanying  documents, 
is  contained  in  Senate  Doc.  454,  19th  Cong.,  2d  sess. ;  G  Am.  St.  Pap. 
(F(jr.  Pel.),  578. 

President  J.  Q.  Adams's  message  of  April  25,  1828,  containing  "a 
treaty  of  amity,  commerce,  and  navigation  between  the  United  States 
of  America  and  the  United  Mexican  States,"  signed  February  14,  1828, 
is  in  Senate  Doc.  487,  20th  Cong.,  1st  sess. ;  0  Am.  St.  Pap.  (For.  Pel.), 
952. 

"  In  1825  Mr.  Poinsett  was  dispatched  as  minister  to  ]\rexico.  lie  was 
instructed  to  '  bring  to  the  notici!  of  the  Mexican  Government  the  mes- 
sage of  the  lale  Pie.sident  of  the  United  States  to  their  Congress,  on 
the  2d  of  December,  182;J,  asserting  certain  imi)ortant  ]»rin(;ii)l('S  of  in- 
tercontinental law  in  the  relations  of  Europe  and  Ameriea.  The  (irst 
piinciple  asserted  in  that  message  is,  that  the  American  continents  are 
not  henceforth  to  be  consid<*red  as  subje(;ts  for  future  colonization  by 
any  European  powers.     •     •     »     Tiie  other  principle  asserted  in   tho 

253 


§  154.]  TREATIES.  [chap.  VI. 

messagfc  is,  that  whilst  wo  tlo  not  desire  to  interfere  in  Europe  with  the 
political  system  of  tjie  allied  ])()wers,  we  should  regard  as  danjjerous  to 
our  i)eace  and  safety  any  attempt  on  their  part  to  extei'.d  their  sys- 
tem to  any  portion  of  this  hemisphere.'  (See  discussion  on  these  points, 
sitpra,  §  57.) 

•'Poinsett  was  further  instructed  to  secure,  if  possible,  a  treaty  of 
limits  and  a  treaty  of  amity  and  commerce,  on  the  basis  of  the  recently 
concluded  convention  with  Colombia.  The  treaty  which  he  si;;ned,  and 
the  account  of  the  nej^otiations  which  preceded  it,  will  be  found  in  the 
Gth  volume  of  the  folio  edition  of  the  I'\)reiiiii  lielations,  ])ages  578_(;i;j. 
This  treaty  did  not  receive  the  assent  of  the  Senate,  except  upon  con- 
ditions which  caused  it  to  fail.  The  treaty  of  limits  of  l.Sl'S  was  then 
concluded,  and  in  1831  a  treaty  of  amity  and  commerce  was  sijjned, 
which  is  still  in  force. 

"The  war  between  Texas  and  ]\Iexico  alfected  the  relations  between 
Mexico  and  the  United  States,  and  was  the  cause  of  fretpu'ut  commu- 
nications from  the  Executive  to  Conjiress,  and  of  frequent  discussions 
and  re])orts  in  that  body.  At  one  time,  in  the  early  staj^e  of  the  dis- 
cussion, the  Mexican  minister  withdrew  himself  from  Washington,  but 
relations  were  soon  restored.     (See  supra,  §§  58,  72.) 

"Claims  began  to  arise  and  to  be  pressed  against  Mexico  as  early  as 
1S3G.  In  1837  they  were  made  the  subject  of  Presidential  messages. 
A  convention  was  concluded  for  the  adjustment  of  these  claims  in  1838, 
which  was  not  ratified  by  the  Mexican  Government;  and  another  con- 
vention was  concluded  and  ratihed  by  both  ])arties,  for  the  same  ])ur- 
pose,  in  Ai)ril,  1830,  The  acts  of  Congress  to  carry  this  into  etfect  were 
approved  on  the  12th  of  June,  1840,  aud  on  the  1st  of  September,  1841. 
(Supm,  §  22.) 

"  \\  hen  the  commissioners  on  each  side  met  together  [William  L. 
Marcy  was  one  of  the  United  States  commissioners],  a  radical  diflerence 
of  opinion  on  important  subjects  was  found  to  exist.  (1)  The  Ameri- 
can commissioners  regarded  the  joint  body  as  a  judic^ial  tribunal.  The 
Mexican  commissioners  regarded  it  as  a  diplomatic  body.  (2)  The  Amer- 
icans asserted  that  the  claimants  had  a  right  to  appear  personally  or  by 
counsel  before  the  commissioners.  The  Mexicans  denied  this,  and  in- 
sisted that  the  proof  must  come  through  the  Government.  Much  time 
was  lost  in  these  and  kindred  discussions;  so  that,  when  the  last  day 
for  action  had  passed,  several  claims  had  not  been  acted  on.  This  was 
the  cause  of  much  subsequent  corresi)oiidence.  Mexico  did  not  keep  its 
engagements  under  this  treaty,  aud  in  1813  a  uew  convention  respecting 
the  ])ayments  was  made,  in  which  it  was  agreed  that  another  claims 
convention  should  be  entered  into;  but  this  had  not  been  done  when 
war  broke  out  between  the  parties,  in  184G. 

"A  treaty  was  concluded  with  Texas  for  its  annexation  to  the  United 
States,  but  it  failed  to  receive  the  assent  of  the  Senate.  Congress  then, 
by  joint  resolution,  declared  that  it  'doth  consent  that  the  territory 
properly  included  within,  and  rightfully  belonging  to,  the  Kepublic  of 
Texas  may  be  erected  into  a  new  State,  to  be  called  the  State  of  Texas,' 
and  on  the  29th  of  December,  1845,  it  was  jointly  resolved  'that  the 
State  of  Texas  shall  be  one  *  *  *  of  the  United  States  of  America, 
aud  admitted  into  the  Union  on  an  equal  footing  with  the  original  States 
in  all  respects  whatever.'     (See  supra,  §§  oS,  72.) 

"On  the  13th  of  the  following  May  Congress  declared  in  the  ])reara- 
ble  of  the  act  i)roviding  for  the  prosecution  of  the  war  with  Mexico, 
that  'by  the  act  of  the  Kepublic  of  Mexico  a  state  of  war  exists  between 

254 


CHAP.  VI.]  MEXICO.  [§  154. 

that  Government  and  the  United  States,'  and  on  the  same  day  Presi- 
dent Polk  made  proclamation  of  that  fact. 

"While  hostilities  were  going  on,  2:sicholas  P.  Trist,  chief  clerk  of  the 
Department  of  State,  was  dispatched  to  Mexico,  and  opened  negotia- 
tions for  peace.  Be  was  instrncted  to  demand  the  cession  of  New  Mex- 
ico and  California  in  satisfaction  of  claims  against  Mexico  on  the  ground 
that  'a  state  of  war  abrogates  treaties  previously  existing  between  the 
belligerents,  and  a  treaty  of  peace  puts  an  end  to  all  claims  for  indem- 
nity.' The  proposals  were  rejected  by  ^Mexico,  and  the  commissioner 
was  recalled  on  the  6th  of  October,  184:7.  He  remained,  however,  in 
Mexico,  notwithstanding  the  instructions  to  return,  and  he  succeeded 
in  concluding  the  treaty  of  Guadalupe-Hidalgo  on  the  lid  of  February, 
1848,  This  was  communicated  to  the  Senate  on  the  23d  of  February. 
Sundry  amendments  were  made  by  the  Senate  and  accepted  by  Mexico, 
and  the  ratifications  were  exchanged  on  the  30th  of  ^lay,  1848.  *  *  * 
On  the  6th  of  July,  1848,  the  President  communicated  the  treaty  to 
Congress,  with  a  message  asking  legislation  to  carry  it  into  eflect.  On 
the  -!9th  of  the  same  mouth  the  act  for  the  payment  of  the  liquidated 
claims  against  Mexico  passed  Congress.  {kSvjjraj  §  131a.)  The  civil 
and  diplomatic  appropriation  bill,  approved  on  the  12th  of  August,  con- 
tained a  provision  for  the  survey  of  the  new  boundary  line,  and  in  the 
following  session  provision  was  made  for  payment  in  part  of  the  sums 
due  to  Mexico  under  the  12th  article.  On  the  3d  of  March,  1849,  a  com- 
mission was  created  to  examine  the  claims  upon  Mexico,  which  were  to 
be  assnmed  by  the  United  States;  and  on  the  3d  of  March,  1851,  a  loan 
was  authorized  for  their  payment.  One  hundred  and  eighty-two  claims 
were  allowed,  and  seventy  were  rejected. 

"In  the  exchange  of  the  ratifications  of  the  treaty  of  Guadalupe-Hi- 
dalgo, certain  explanations  were  embodied  in  a  protocol  signed  by  the 
plenipotentiaries.  These  became  the  subject  of  a  discussion  in  Congress 
early  in  1849  which  induced  the  Mexican  minister  at  Washington  (who 
appears  to  have  been  the  same  person  who,  as  plenipotentiary,  ex- 
changed the  ratifications  of  the  treaty  on  the  part  of  Mexico),  to  ask  of 
Mr.  Buchanan,  the  Secretary  of  State,  an  assurance  in  the  form  of  a 
message  from  the  President,  that  the  United  States  adhered  to  the  pro- 
tocol. Buchanan  replied  that  '  the  President  would  violate  the  most 
sacred  rights  of  the  legislative  branch  of  the  Government  if  he  were  to 
criticise  or  condemn  any  portion  of  their  proceedings,  even  to  his  own 
countrymen  ;  much  less,  therefore,  can  he  be  called  upon  by  the  repre- 
sentative of  a  foreign  Government  for  any  explanation,  condemnation, 
defense,  or  api)roval  of  their  proceedings.  *  *  *  The  President  will 
be  ever  ready,  in  the  kindest  spirit,  to  attend  to  all  repi'eseutations  of  the 
Mexican  Goveinmcut,  commjinicated  in  a  form  which  does  not  interfere 
with  his  own  rights  or  those  of  Congress.'" 

Mr.  J.  C.  B.  Davis,  Notes,  Sec.     See,  on  last  jxiiut,  miprci,  ^  VXi. 

"  In  1861  an  extradition  treaty  was  concluded  with  Mexico,  and  in 
1868  a  naturalization  convention,  and  a  convention  for  the  establish- 
ment of  a  claims  commission.  The  commission  was  duly  organized  in 
Washington.  Its  ])owers  were  extended  by  a  convention,  concluded 
Apiil  19,  1871,  and  a  furth<*r  extension  was  authorized  by  a  convention 
concluded  Xovember  27,  1872." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

255 


§  154.]  Tin  ATIL^S  [CUAP.  VI. 

The  prooi'edinjis  oi'  the  Seiiiite  on  tlic  (Hiadaliipe  llidalyo  tie.ity,  from 
which  the  injunction  of  secrecy  lias  been  removed,  arc  in  Senate  Ex. 
Doc.  52.  .'30th  Conj;.,  1st  sess.  Other  ])apers  rehitive  thereto  are  iu 
House  Ex.  Docs.  40,  5(5,  (50,  GO,  70,  ."iOth  (.'on^.,  1st  sess.  For  communi- 
cation of  the  Secretary  of  State,  Mr.  Buchanan,  aiul  of  President  Polk, 
of  February  H,  1840,  as  to  nejjfotiation  of  this  treaty,  see  House  Ex.  Doc. 
50.  .sot  h  Conj;-.,  L'd  sess. 

Mr.  Sumner,  on  July  14,  ISTO  (Senate  Pep.  L'Cl,  41st  Con<;-.,  I'd  sess.), 
from  the  Committee  on  Foreign  Relations,  to  whom  was  n-lerred  the 
])etition  of  Mi'.  N.  P.  Trist,  for  <'ompensation  for  diplomatic  services, 
mad(>  a  rept»rt  from  which  the  f«»1Iowiji,iLi'  i)assa<;es  are  taken  : 

"The  services  of  Mr. Trist  constitnle  an  i n teres! in, i>'  chajjter  in  the  his- 
tory of  our  countiy.  As  ncuotialor  ol'  tiie  treaty  of  (Juadalupe-Ilidal.Lfo, 
lie  exei'cised  a  decisive  inllucnce  in  terminatinj;'  the  war  with  Mexico, 
by  which  we  were  secured  in  the  hlessinus  of  i)eace  and  in  the  posses- 
sion also  of  an  undisi)uted  title  to  Texas,  and  an  addit  ion  to  the  national 
domain  equal  in  area  to  the  i)resent  territory  ol"  Mexico,  and  including 
in  its  expanse  the  great  and  i)rosperous  State  of  California. 

"•Mr.  Trist,  while  chief  clerk  of  the  State  Department, and  in  confiden- 
tial relations  with  Mr.  Buchanan,  the  Secretary  of  State,  was  selected 
avS  'commissioner  to  negotiat,e  und  conclude  a  settlement  of  existing 
differences  and  a  lasting  treaty  of  jieace'  Avith  Mexico.  On  the  l(5th 
April,  1847,  he  left  Wasliington  and  i)roceeded  to  the  headquarters  of 
the  Army  of  the  United  States  in  ^Mexico,  where  for  several  months  ho 
labored  anxiously  to  accomplisli  the  object  of  his  important  mission. 
Not  until  November,  1847,  was  the  first  great  point  reached.  Tliis  was 
the  appointment  of  a  commission  on  the  part  of  the  Mexican  Govern- 
ment authorized  to  negotiate. 

"Meanwhile  at  Washington  there  was  a  s))irit  hostile  to  negotiation; 
Mexico  was  not  sufliciently  humiliated.  In  the  midst  of  his  negotiation, 
when  a  treaty  of  peace  was  almost  within  his  gras}),  on  the  10th  Novem- 
ber, 1847,  Mr.  Trist  suddenly  received  a  letter  of  recall,  with  the  order 
to  return  home  by  the  first  safe  opportunity.  After  careful  deliberation, 
and  with  the  sure  conviction  that  if  his  efforts  were  thus  abruptly  ter- 
minated the  war  would  be  much  jnolonged,  while  the  difficulties  of  ob- 
taining another  IVIexican  commission  would  be  increased,  he  concluded 
to  i)roceed,  and  do  what  he  could  for  the  sake  of  i)eace.  The  Mexicans 
to  whom  he  communicated  the  actual  condition  of  affairs  united  with 
him,  and  a  treaty  was  signed  on  the  2(1  February,  1848,  at  Guadalupe- 
Hidalgo.  jNIr.  Trist  remained  in  Mexico  until  the  Stli  ot  April,  1848,  in 
order  to  ]notect  the  interests  of  the  United  States,  and  would  have  re- 
mained longer  had  not  an  order  for  his  arrest,  sent  from  Washington  to 
our  military  authorities,  compelled  him  ta  leave. 

"It  is  understood  that  the  President,  on  the  arrival  of  the  treaty, 
l)ropo.sed  to  suppress  it;  but,  nn willing  to  encounter  public  opinion, 
which  was  favorable  to  ])eace,  he  communicated  it  to  the  Senate,  wlien, 
with  certain  amendments,  it  was  ratified  by  a  vote  of  38  yeas  to  14  nays. 
And  thus  the  war  with  Mexico  was  closecl. 

"The  commissioner  who  had  taken  such  great  responsibility  reached 
Washington  on  his  return  in  Jun-e,  1848,  only  to  encounter  the  enmity 
of  the  Administration  then  in  power.  His  mission  had  been  crowned 
with  success  but  he  was  disgraced.  By  order  of  President  Polk  his 
pay  was  stopi)ed  at  November  1(5,  1847,  so  that  the  service,  as  peace- 
maker, rendeicd  after  that  date  was  left  without  compensation  as  with- 
out honor.    ^Ir.  Trist  was  proud  and  sensitive,     He  determined  to  make 

25C 


CHAP.  VI.]  MEXICO.  [§  154. 

no  applicatiou  at  that  time  for  the  coiupeusation  be  Lad  earuetl,  aud  to 
await  the  spoutaneous  offer  of  it  unless  compelled  by  actual  want." 

For  President  Polk's  message  on  this  treat}'  see  siqn-a,  ^  I'M. 

Mr.  Trist's  instructions  were  as  follows  : 

"  Since  the  glorious  victory  of  Bueua  Yista,  and  the  capture  of  Vera 
Cruz  and  the  Castle  of  San  Jiiaii  d'Ulloa  by  the  Au)erican  arms,  it  is 
deemed  probable  that  the  Mexican  Government  may  be  willing  to  con- 
clude a  treaty  of  peace  with  the  United  States.  Without  any  certain 
information,  however,  as  to  its  disposition  the  President  would  not  feel 
justified  in  appointing  public  commissioners  for  this  purpose,  and  in- 
viting it  to  do  the  same.  After  so  many  overtures,  rejected  by  Mexico, 
this  course  might  not  only  subject  the  United  States  to  the  indignity 
of  another  refusal,  but  might  in  the  end  prove  prejudicial  to  the  cause 
of  peace.  The  Mexican  Government  might  thus  be  encouraged  in  the 
mistaken  opinion  which  it  probably  already  entertains,  respecting  the 
motives  which  have  actuated  the  President  in  his  repeated  efforts  to 
terminate  the  war. 

"  He  deems  it  proper,  notwithstanding,  to  send  to  the  headquarters 
of  the  Army  a  confidential  agent,  fully  acquainted  with  the  views  of 
this  Government,  and  clothed  with  full  powers  to  conclude  a  treaty  of 
peace  with  the  ]\Iexican  Government,  should  it  be  so  inclined.  In  this 
manner  he  will  be  enabled  to  take  advantage,  at  the  propitious  mo- 
ment, of  any  favorable  circumstances  which  might  dispose  that  Gov- 
ernment to  peace. 

"The  President,  therefore,  having  full  confidence  in  your  ability, 
l^atriotism,  and  integrity,  has  selected  you  as  a  commissioner  to  the 
United  ^Mexican  States,  to  discharge  the  duties  of  this  important  mis- 
sion." 

A  notice  of  the  negotiations  which  preceded  the  treaty  of  Guadalupe- 
Hidalgo,  is  given  in  an  ai)pendix  to  Mr.  Sumner's  report. 

Mr.  Trist  left  Washington  (where  he  was  chief  clerk  in  the  Depart- 
ment of  State)  on  April  16,  1847.  He  reached  Vera  Cruz  on  May  6. 
According  to  the  statement  given  in  Mr.  Sumner's  report,  Mr.  Trist  on 
November  IG,  1847,  received  the  following  letter  of  recall,  dated  Octo- 
ber G: 

"They,  the  Mexican  Government,  must  attribute  our  liberality  to 
fear,  or  they  must  take  courage  from  our  supposed  political  divisions. 
Some  such  cause  is  necessary  to  account  for  their  strange  infatuation. 
In  this  state  of  afiairs,  the  President,  belicvitig  that  your  continued  pres- 
ence icith  the  Army  can  he  productive  of  no  yood,  hut  may  do  much  harm 
by  cnconraying  the  delusive  holies  and  false  impressions  of  the  Mexicans, 
has  directed  me  to  recall  you  from  your  mission,  atul  instruct  you  to 
retuin  to  the  United  States  by  the  first  safe  opportunity." 

Thestatemeut  annexed  to  Mr.  Sumner's  report  thus  continues: 
"Thus  situated,  ]\Ir.  Trist  did,  nevertheless,  forthwith  enter  upon  a 
a  course  of  strict  conformity  with  his  recall.     In  his  (lisj)atch,  acknowl- 
edging tlie  simultaneous  receipt  of  the  recall,  and  its  reiteration  under 
dates  (October  G  and  L'5,  he  says  : 

"  '  My  first  thought  was  immediately  to  address  a  note  to  the  IMexican 
(Government,  advising  them  of  the  inutility  of  i)ursuing  their  intention  to 
aj)i)()inl  commissioners  to  meet  me.  On  rellection,  however,  the  depress- 
ing infiuence  which  this  would  exercise  ujjou  the  peace  party,  and  the 
exhilaration  which  it  would  [)roducii  among  the  opposition,  being  but 
too  manifest,  I  d<!t(!rmined  to  postpone  making  t!iiscommuni(;ation  oHi- 

S.  Mis.  IGL'— VOL.  II 17  l-'57 


§  154.]  TREATIES.  [chap.  VI. 

cially,  and  ineanwhile  i)rivately  to  advise  the  leading;  men  of  the  party, 
Lere  and  at  Queretaro,  of  the  instructions  which  1  had  received.'  *  *  * 
"That  '  first  safe  opportunity,'  by  which  I\Ir.  Trist  was  thus  ordered  to 
return,  did  not  occur  until  the  lOtli  day  of  December.  ^Vllen  the  order 
reached  him,  (November  IG,  1817),  it  was  ex])ected  that  an  army  train 
for  Vera  Cruz  would  leave  the  city  of  Mexico  about  the  end  of  that 
month.  Owini,%  however,  to  the  unexpected  detention  at  that  port  of  a 
train  which  had  been  sent  there  for  supplies,  the  departure  of  the  cue 
with  which  ]\Ir.  Trist  had  prepared  to  leave  was  jjostponed,  first,  to  the 
4th  of  December,  and  then  to  the  lOth.  On  this  day  the  train  started. 
Mr.  Trist,  however,  did  not  go  with  it.  IJad  it  been  delayed  no  later 
than  the  4th,  in  such  case  his  return  journey  would  have  begun  on  the 
morning  of  that  day." 

Mr.  Trist,  on  December  G,  sent  the  following  dispatch  to  the  Secre- 
tary of  State: 

"licferring  to  my  previous  dispatches  in  regard  to  the  political  state 
of  this  conntry,  and  to  the  inclosed  copy  of  a  confidential  letter,  under 
date  the  4th  instant,  to  a  friend  at  Queretaro,  to  whose  able  and  inde- 
fatigable co-operation  in  the  discharge  of  the  trust  committed  to  me  1 
Jiave,  from  the  very  outset,  been  greatly  indebted,  1  will  here  enter  at 
greater  length  into  the  considerations  by  which  I  have  been  brought  to 
a  resolve  so  fraught  with  responsibility  to  myself;  whilst,  on  the  other 
hand,  the  circumstances  under  Avhich  it  is  taken  are  such  as  to  leave 
the  Government  at  perfect  liberty  to  disavow  my  proceeding,  should  it 
be  deemed  disadvantageous  to  our  country." 

"The  friend  at  Queretaro,  '  to  whose  able  and  indefatigable  co-opera- 
tion'Mr.  Trist  so  acknowledged  his  deep  obligations,"  continues  the 
statement  in  ^Ir.  Sumner's  report,  "  was  Mr.  Edward  Thornton,  at  that 
time,  owing  to  the  retirement  of  the  British  minister  from  ill  health,  left 
in  charge  of  the  British  legation  in  ]\Iexico.  The  same  gentleman  is 
now  the  representative  of  his  sovereign  to  our  Government. 

"The  resolve  so  formed  by  the  ex-commissioner  of  the  United  States 
was  to  this  effect :  Should  the  Mexican  Government  be  willing,  he  would 
take  upon  himself  to  engage  with  itsi)lenipotentiaries  in  the  work  which 
bad  been  so  unexpectedly  prevented  by  his  recall.  All  such  action  on 
his  part  would,  of  course,  be  devoid  of  validity  and  of  all  binding  force 
upon  our  Government.  Nevertheless,  should  the  negotiation  result  in 
their  agreeing  upon  the  terms  of  a  treaty,  such  treaty  would  secure  to 
the  cause  of  peace  the  chance  of  its  adoption  by  the  Government  of  the 
United  States,  upon  its  being  presented  with  the  option  so  to  put  an 
end  to  the  war. 

"The  attempt  so  ventured  upon  was  crowned  with  success.  Ilis  pro- 
posal was  accepted  by  the  Mexican  Government.  The  plenipotentiaries 
who,  just  before  his  recall  arrived,  had  been  selected  to  meet  him,  were 
commissioned.  They  at  once  went  to  work,  and  the  work  was  plied  so 
diligently  that  in  about  six  weeks'  time  from  their  first  regular  confer- 
ence their  task  was  brought  to  its  desired  end  by  the  signing  at  Guada- 
lupe-Hidalgo, on  the  2d  of  February,  1848,  of  the  document  in  the  form 
of  a  treaty,  which  was  immediately  sent  to  the  Secretary  of  State  at 
Washington. 

"Every  possible  provision  having  been  nmde  for  its  speedy  convey- 
ance, it  reached  its  destination  in  sixteen  or  seventeen  days  after  signa- 
ture— the  quickest  time  ever  made  by  man  between  the  capitals  of  the 
two  Bepublics — the  bearer  being  James  L.  Freauer,  a  native  of  the  State 

258 


CHAP.  VI.]  MEXICO.  [§  154. 

of  Maryland,  aud  the  only  man  who  bad  been  in  any  way  instrumental 
in  determining  Mr.  Trist  to  make  the  attempt  of  wliicli  that  document 
was  the  result. 

"On  the  23d  of  February,  1848,  some  days  after  its  arrival  at  Wash- 
ington, the  document  received  from  Mr.  Trist  was  communicated  by  the 
President  to  the  Senate,  with  a  message,  bearing  date  the  day  previous 
(February  22),  beginning  thus: 

"'I  lay  before  the  Senate,  for  their  consideration  and  advice  as  to  its 
ratification,  a  treaty  of  peace,  friendship,  limits,  and  settlement,  signed 
at  the  city  of  Guadalupe-Hidalgo  on  the  2d  day  of  February,  1848,  by 
K.  P.  Trist,  on  the  part  of  the  United  States,  and  by  plenipotentiaries 
appointed  for  that  purpose  on  the  part  of  the  Mexican  Government.' 

"  By  the  Executive  action  so  taken  upon  the  document,  the  invalidity 
of  that  in  which  it  originated  was  cured,  and  it  became  transmitted  into 
a  genuine  treaty,  so  far  as  the  President's  sole  authority  was  competent 
to  impart  this  character  to  it. 

"A  week  later,  on  the  29th  of  the  same  month,  in  another  message  to 
the  Senate,  the  President  took  occasion  to  explain  that  his  first  message 
was  intended  to  be  understood  as  positively  recommending  the  treaty  for 
adoption — the  words  upon  this  point  in  the  second  message  being: 

"•I  considered  it  to  be  my  solemn  duty  to  the  country,  uninfluenced 
by  the  exceptionable  conduct  of  Mr.  Trist,  to  submit  the  treaty  to  the 
Senate  with  a  recommendation  that  it  be  ratified  with  the  modifications 
suggested.' 

"Incorporated  with  this  express  recommendation  are  the  President's 
reasons  for  considering  it  his  solemn  duty  to  make  it ;  among  which 
assigned  reasons  is  his  belief,  'that,  if  the  present  treaty  he  rejected,  the 
war  ic ill  probably  be  continued,  at  a  great  expense  of  life  and  treasure, 
for  an  indefinite  period.^ 

"After  thorough  discussion  by  the  Senate,  extending  from  February 
23  to  March  10,  in  which  it  underwent  various  modifications,  its  ratifi- 
cation was  advised  and  consented  to  by  a  vote  of  38  yeas  to  14  nays." 

The  ])osition  in  respect  to  negotiation  and  ratification  by  Mexico  was 
not  unlike  the  subsequent  position  of  France  after  the  Franco-German 
war.  The  diflticulty  was  not  so  much  in  settling  the  terms  of  peace  as 
in  finding  in  the  conquered  countr^^  a  stable  government  with  whom 
these  terms  could  be  settled. 

Mr.  Trist,  in  his  dispatch  of  February  2, 1848,  transmitting  the  treaty, 
thus  notices  this  question  : 

"  With  respect  to  the  ratification  of  the  treaty,  I  believe  the  chances 
to  be  very  greatly  in  its  favor.  *  *  *  The  elections  are  yet  to  be 
held  in  the  States  of  Vera  Cruz  and  Puebla.  In  the  former  the  puros 
(war  party)  never  had  any  strength  whatever;  in  the  latter  not  enough 
to  counteract  a  vigorous  and  concerted  efibrt  on  the  i)art  of  the  moder- 
ados.  These  elections  will  now  speedily  take  place,  under  the  arrange- 
ments for  facilitating  them  which  will  be  entered  into  in  pursuance  of 
the  second  article  of  the  treaty  (inserted  u-iiha  special  view  to  this  ob- 
ject); and  the  result  tcill,  according  to  eccry  probability,  give  to  the  peace 
party  in  Congress  a  preponderance  so  decided  as  to  insure  its  prompt  ratifi- 
cation.^^ 

"Ten  days  later  his  dispatch  No.  29,  February  12,  1848,  transmitting 
the  maps  referred  to  in  tlie  fifth  article  of  the  treaty,  closes  with  these 
words  : 

"'1  taki;  great  pleasuic  in  stating  that  the  probabilities  of  tlu'  ratifi- 
cation of  the  treaty  by  iNIexico,  which  were  previously  very  good, /tare 

259 


§  154.]  TREATIES.  [chap.  VI, 

been  growing  stronger  and  stronger  every  hour  for  several  dags  past^  iiiid 
that  there  is  fjood  reason  to  believe  that  it  may  take  phice  withiu  two 
months  of  this  date. 

"  'In  the  accomi)an.vinj^  Monitor  Kejjnblicano  t)f  the  11th  instant  will 
ho  found  the  eireular  of  the  minister  of  relations  to  the  governors  of 
States  inlbrmin<^  them  of  the  sijjnatnre  of  tho  treaty.' 

''Those  anticipations  of  ^Ir.  Trist,  both  as  to  the  results  of  the  election 
in  auj,Mnenting;  the  preponderance  already  acquiri'd  by  the  i)eace  party 
in  Congress,  and  as  to  the  use  which  would  be  made  of  this  jjreponder- 
ance,  wcie  soon  veiilied  to  the  very  letter,  and  far  beyond  it. 

"  Intellijience  reaching  Mexico  that  the  Senate  of  the  United  States 
were  engaged  in  making  amendments  to  the  treaty,  all  action  of  the 
Mexican  (lovernment  in  regard  to  its  ratification  was  suspended  until 
the  amendments  so  made  should  become  known.  They  became  so  olU- 
cially  by  the  letter  of  the  Secretary  of  State  of  the  United  States,  March 
18,  to  the  minister  of  relations.  Upon  its  recei[)t  by  him,  the  treaty,  as 
ratilied  by  the  Government  of  the  United  States,  with  the  amendnK-nts 
of  our  Senate,  was  laid  before  the  Mexican  Congress,  both  houses  of 
which  must  advise  and  consent  to  a  treaty  before  it  can  be  ratified. 
First  taken  up  in  the  Chamber  of  ])eputies,  it  was  adopted  there  by  a 
large  majority;  then  in  the  Senate,  it  i)assed  that  body  by  a  vote  of  33 
yeas  to  5  nays." 

Sen.  Rep.  2G1,  41  Cong.,  2tl  sess. 

The  antecedents  aud  eflfect  of  the  treaty  of  Guadekijie-Hidalgo  are 
discussed  in  2  Lawrence  com.  sur  droit  int.,  338. 

The  8th  section  of  the  treaty  of  Guadalupe-nidalgo,  guaranteeing 
titles,  «&;c.,  had  reference  to  the  territory  acquired  by  the  United  States 
by  that  treaty,  and  did  not  refer  to  Texas. 

McKinncy  v.  Savicgo,  18  How.,  235.     See  furtbcr,  s«/ira,  §  4. 

The  United  States  have  never  sought  by  their  legislation  to  evade 
the  obligation  devolved  upon  them  by  the  treaty  of  Guadalupellidalgo 
to  protect  the  rights  of  property  of  the  inhabitants  of  the  ceded  terri- 
tory or  to  discharge  it  in  a  narrow  and  illiberal  manner.  The}'  have 
directed  their  tribunals,  in  passing  upon  the  rights  of  the  inhabitants,  to 
be  governed  by  the  stipulations  of  the  treaty,  the  law  of  nations,  the 
laws,  usages,  and  customs  of  the  former  Government,  the  principles  of 
equity,  and  the  decisions  of  the  Supreme  Court,  so  far  as  they  are  ap- 
plicable. 

U.  S.  V.  Auguisola,  I  Wall.,  352. 

The  cession  of  California  to  the  United  States  did  not  impair  the 
rights  of  private  property'.  These  rights  were  consecrated  by  the  law 
of  nations  and  protected  by  the  treaty  of  Guadalupe-Eidalgo. 

U.  S.  r.  Moro.-o,  1  Wall.,  400. 

Article  7  of  the  treaty  of  1848  between  the  United  States  and  Mexico 

stipulated  that  the  navigation  of  the  river  Bravo  (otherwise  called  the 

Rio  Grande)  should  be  free  and  common  to  the  citizens  of  both  countries, 

without  interruption  by  cither  without  the  consent  of  the  other,  even 

2C0 


CHAP.  VI.]  NETHERLANDS.  [§  155. 

for  the  purpose  of  improving  the  navigation.  l!s'ctbiug  short  of  an  ex- 
press declaration  by  the  Executive  wouhl  warrant  a  court  in  ascribing 
to  tiie  Government  an  intention  to  blockade  such  a  river  in  time  of  peace 
between  the  two  Eepublics. 

The  Petcrhoff,  5  WaU.,-C)l. 

The  treaty  of  Guadalupe-Hidalgo  between  the  United  States  and 
Mexico  makes  no  distinction,  in  the  i)rotection  it  provides,  between  the 
property  of  individuals  and  the  property  held  by  towns  under  the  Mex- 
ican Government. 

Towusend  r.  Greeley,  5  Wall.,  326. 

The  protection  which  by  the  treaty  of  Guadalupe-Hidalgo  the  United 
States  promised  to  Mexican  grantees  extended  to  rights  which  they 
then  held. 

Hensbaw  i".  Bissell,  18  Wall.,  2G4. 

As  to  extension  of  juridical  rights,  see  Atocha  v.  U.  S.,  6  C.  Cls.,427. 

Under  the  Mesilla  treaty  seven  millions  of  dollars  were  to  be  paid 
on  exchange  of  ratifications,  and  three  milliorswhen  the  new  boundary 
line  was  established. 

7  Op.,  582,  Cashing,  1855. 

The  question  whether  the  United  States  will  pay,  according  to  their 
original  tenor,  drafts  drawn  by  the  Mexican  Government,  under  the 
Mesilla  convention,  or  suspend  the  payment  at  the  subsequent  request 
of  that  Government,  is  matter  of  political,  not  of  legal,  determination. 

7  Op.,  599,  Gushing,  1855. 

The  treaty  questions  concerning  intervention  in  Mexico  are  discussed, 
supra,  §  58. 

As  to  treaty  giving  equal  jmvileges  as  to  real  estate,  see  infra,  ^  234. 
As  to  treaty  with  Mexico  in  respect  to  citizenship,  see  infra,  $  189. 
As  to  violation  of  treaty  duties  by  Mexico,  see  infra,  $  230. 

(18)  Nethkulands. 

§  155. 

It  seems  there  is  no  treaty  stipulation  between  the  United  States  and 
the  Netherlands  on  the  subject  of  the  riglits  by  inheritance  of  the  chil- 
dren of  a  deceased  child  of  a  Netherlander  dying  intestate  in  the  United 
States.     Article  G  of  the  treaty  of  1782  relates  only  to  per.sonalty. 

12  Op.,  5,  Slaubcry,  l>iGG.     Sec,  as  to  abrogation  of  treaty  of  1782,  supra,  $  i:!7a. 

The  history  of  the  negotiations  witii  tlie  Xetherlands  i)rior  to  the 
adoption  of  the  Constitution  of  the  United  States  is  given  in  INIr.  J.  0. 
Bancroft's  Notes  to  the  Treaties  of  the  United  States. 

Ah  to  N'l'tiictl.iinlH  spoliatJKiiH,  see  infra,  $  22H. 

261 


§^  156,  157]  TREATIES.  [chap.  VI. 

(19)  Paraguay. 
§  15G. 

The  Uiiitod  States  tit-aty  relations  witli  Parafjiiay  arc  discussed  in 
the  corresiMMidenee  annexed  to  Tiesident  IJnchanan's  inessajxe  at  lirst 
session  of  35tli  Congress,  Deeeiiibt'r  7,  1857. 

The  proceedings  against  Paraguay  in  18,^7  are  noticed,  infra,  §  321. 

(20)  Pkhu. 
§  157. 

Article  X  in  the  treaty  of  July  LM),  1.-51,  negotiated  with  Peru  by  Mr. 
J.  Iiandoli)h  Clay,  an  accomplished  diplomatist,  is  as  follows: 

"The  lvei)ublic  of  Peru,  desiring  to  inta-ease  the  intercourse  along  its 
coasts,  by  means  of  steam  navigation,  hereby  engages  to  accord  to  any 
citizen  or  citizens  of  the  United  States  who  may  establish  a  line  of 
steam  vessels  to  navigate  regularly  between  the  ditferent  |)orts  of  en- 
try within  the  Peruvian  territories,  the  same  i)rivil('ges  of  taking  in  and 
landing  freight,  entering  the  by-ports  for  the  ])urpos<'  of  receiving  and 
landing  passengers  and  their  baggage,  specie,  and  bullion,  carrying  the 
public  nuiils,  establishing  depots  for  coal,  erecting  the  necessary  ma- 
chine and  workshops  for  repairing  and  refitting  the  steam  vessels,  and 
all  other  favors  enjoyed  by  any  other  association  or  company  whatso- 
ever. It  is  furthermore  understood  between  the  two  high  contracting 
parties,  that  the  steam  vessels  of  either  shall  not  be  subject  in  the  ports 
of  the  other  party  to  any  duties  of  tonnage,  harbor,  or  other  similar 
duties  whatsoever,  than  those  that  are  or  may  be  paid  by  any  other 
association  or  company." 

As  a  preliminary  of  this  treaty,  an  expedition  has  been  sent  by  the 
Government  of  the  United  States  to  South  America  for  the  i)urposeof 
exploring  the  river  Amazon  and  its  tributaries,  and  ascertaining  the 
opportunities  for  commerce  which  they  opened.  The  Brazilian  Gov- 
ernment, advised  of  these  movements,  sent  an  envoy  to  Peru  and 
Bolivia  to  counteract  them  ;  and  on  October  21, 1851,  a  treaty  was  exe- 
cuted between  Peru  and  Brazil  providing  that  the  navigation  of  the 
Amazon  should  be  controlled  by  the  riparian  sovereigns  ;  providing, 
also,  for  a  subsidy  by  Peru  to  a  projected  Brazilian  steamship  enter- 
prise. Mr.  Clay,  on  discovering  the  character  of  this  treaty,  and  find- 
ing that  an  effort  was  making  by  Brazil  to  induce  Bolivia  to  accede  to 
it,  succeeded,  through  Lieutenant  Ilerndon,  who  was  then  on  Bolivian 
waters  in  charge  of  the  United  States  exploring  expedition,  in  prevent- 
ing Bolivia  accepting  the  exclusive  policy  as  to  the  Amazon  which 
Brazil  had  imposed  on  Peru.  Brazil,  in  furtherance  of  her  i)retensions  to 
the  absolute  control  of  the  Amazon,  and  in  conformity,  as  she  alleged, 
with  her  treaty  of  1851  with  Peru,  incorporated  a  distinctively  Brazil- 
ian steamship  comj^any  to  which  she  conceded  the  monopoly  of  steam 
navigation  on  the  river. 

On  January  27,  1853,  as  we  have  already  seen  {supra,  §  40),  Bolivia 
declared  all  navigable  waters  flowing  through  her  territory  to  be  free  to 
the  commerce  of  all  nations.  Mr.  Clay,  having  urged  on  Peru  that  her 
accession  to  the  lirazilian  policy  was  in  contravention  of  her  treaty  of 
1851  with  the  United  States,  obtained  from  her  a  decree  extending  to 
all  the  most  favored  uations  the  privileges  granted  to  Brazil,  and  mak- 

262 


CH^P.  vl]  PERtr.  [§157. 

iug  the  cities  of  Nauta  and  Loreto  ports  of  entry,  opeu  to  the  commerce 
of  the  world.  This  was  followed  by  protests  from  Brazil  addressed  to 
other  South  American  States,  and  by  a  series  of  complicated  negotiations 
(see  summary  in  Schuyler's  Am.  Diplomacy,  331. /f.),  in  which,  in  1853, 
the  British  and  French  envoys  took  part.  The  Brazilian  Government, 
haviiig'  made  inquiries  of  the  United  States  as  to  the  "  naval  demon- 
strations" United  States  vessels  were  then  making  on  the  Amazon, 
Mr.  Marcy,  then  Secretary,  answered,  on  September  22,  1853,  disclaim- 
ing any  intention  to  use  force,  and  proceeding  to  say  : 

"  It  appears  to  the  undersigned  that  no  means  would  be  more  cer- 
tain to  lead  to  this  result  (that  of  developing  Brazilian  resources)  than 
the  removal  of  unnecessary  restrictions  upon  the  navigation  of  the  Ama- 
zon, and  especially  to  the  passage  of  vessels  of  the  United  States  to 
and  from  the  territories  of  Bolivia  and  Peru,  by  the  way  of  that  river 
and  its  tributaries." 

On  August  8, 1853,  Mr.  Trousdale,  minister  to  Brazil,  was  instructed 
by  Mr.  Marcy,  Secretary  of  State,  to  claim  for  United  States  vessels 
free  transit  of  the  Amazon  for  commercial  intercourse  with  Ecuador, 
Bolivia,  Peru,  and  Colombia,  appealing  for  this  purpose  to  the  action 
of  the  congress  of  Vienna,  cited  supra,  §  40.  In  this  instruction  is 
the  followiug  passage: 

"  This  restricted  policy  which  it  is  understood  Brazil  still  persists  in 
maintaining  in  regard  to  the  navigable  rivers  i^assing  through  her  ter- 
ritories is  the  relic  of  an  age  less  enlightened  than  the  present.  The 
doctrine  upon  this  subject  is  clearly  presented  in  the  following  extract 
from  Wheaton's  Elements  of  International  Law. 

"  '  Things  of  which  the  use  is  inexhaustible,  such  as  the  sea  and  run- 
ning water  (including,  of  course,  navigable  streams)  cannot  be  so  ap- 
propriated as  to  exclude  others  from  using  these  elements  in  any  man- 
ner which  does  not  occasion  a  loss  or  inconvenience  to  the  proprietor. 
This  is  what  is  called  an  innocent  use.  Thus  we  have  seen  that  the 
jurisdiction  possessed  by  one  nation  over  sounds,  straits,  and  other  arms 
of  the  sea  leading  through  its  own  territory  to  that  of  another,  or  to 
other  seas  common  to  all  nations,  does  not  exclude  others  from  the 
right  of  innocent  i)assage  through  these  communications.' 

"  The  soundness  of  this  principle  cannot,  I  presume,  be  controverted 
by  the  Imperial  Government  of  Brazil.  It  will  not,  therefore,  it  is  be- 
lieved, without  denying  rights  to  our  citizens  to  which  they  are  fairly 
entitled,  louger  withhold  from  them  the  use  of  the  Amazon  to  carry  on 
commercial  intercourse  with  Ecuador,  Peru  and  Bolivia,  New  Granada, 
and  Venezuela.  You  will  claim  from  it  the  renunciation  of  any  author- 
ity it  may  have  heretofore  exercised  to  prevent  the  passage  of  the  mer- 
chant vessels  of  the  United  States  up  and  down  that  river  in  their 
legitimate  commerce  with  any  of  these  Republics.  You  are  instructed 
to  claim  fov  our  citizens  the  use  of  this  natural  avenue  of  trade.  This 
right  is  not  derived  from  treaty  stipulations— it  is  a  natural  one— as 
much  so  as  that  to  navigate  the  ocean— the  comnjon  highway  of  nations. 

203 


§  157.]  TREATIES.  [chap.  VI. 

By  long  usage  it  is  subject  to  some  restrictions  imposed  by  nations 
through  whose  territories  these  uavigable  rivers  pass.  This  right,  how- 
ever, to  restrict  or  reguhite  commerce,  carried  to  its  utmost  extent, 
does  not  give  the  power  to  exclude  such  rivers  from  the  common  use  of 
nations." 

MSS.  Inst.,  Brazil. 

President  Pierce,  in  his  first  annual  message,  December,  1853,  said, 
speaking  of  the  obstructive  policy  of  Brazil  in  tliis  relation: 

"Our  minister  at  Brazil  is  instructed  to  obtain  a  relaxation  of  that 
policy,  and  to  use  his  efforts  to  iuduce  the  Brazilian  Government  to 
open  to  common  use,  under  proper  safeguards,  this  great  natural  high- 
way for  international  trade." 

On  January  4, 1854,  the  Peruvian  Government,  succumbing  to  Brazil, 
issued  a  decree  giving  Brazil  exclusive  privileges  in  the  navigation  of 
the  Amazon.  On  December  9,  18G3,  the  treaty  of  1851,  in  accordance 
with  a  notice  given  a  year  i)revious,  in  conformity  with  its  40th  article, 
was  terminated.  This  caused  a  temporary  cessation  of  all  treaty  rela- 
tions between  the  United  States  and  Peru.  "With  Bolivia  (see  supj-a, 
§  40),  a  treaty  was  agreed  on  in  1858  (signed  May  13,  1858,  ratifications 
excrhauged  November  0,  1802,  proclaimed  January  8,1803),  in  which 
articles  20  and  27  are  as  follows  : 

Art.  XXYI.  "In  accordance  with  fixed  ])rinciples  of  international 
law,  Bolivia  regards  the  rivers  Amazon  and  La  Plata,  with  their  tribu- 
taries, as  highways  or  channels  opened  by  nature  for  the  commerce  of 
all  nations.  In  virtue  of  which,  and  desirous  of  promoting  an  exchange 
of  productions  through  these  channels,  she  will  permit,  and  invites, 
commercial  vessels  of  all  descriptions  of  the  United  States,  and  of  all 
other  nations  of  the  woi  Id,  to  navigate  freely  in  any  ])art  of  their  courses 
which  pertain  to  her,  ascending  those  rivers  to  Bolivian  ports,  and  de 
scending  therefrom  to  the  ocean,  subject  only  to  the  conditions  estab 
lisbed  by  this  treaty,  and  to  regulations  sanctioned,  or  which  may  be 
sanctioned,  by  the  national  authorities  of  Bolivia  not  inconsistent  with 
the  stipulations  thereof. 

Art.  XXVII.  "The  owners  or  commanders  of  vessels  of  the  United 
States  entering  the  Bolivian  tributaries  of  the  Amazon  or  La  Plata 
sliall  have  the  right  to  put  up  or  construct,  in  whole  or  in  part,  vessels 
adapted  to  shoal-river  navigation,  and  to  transfer  their  cargoes  to  them 
without  the  payment  of  additional  duties;  and  they  shall  not  pay  duties 
of  any  description  for  sections  or  pieces  of  vessels,  nor  for  the  machinery 
or  materials' which  they  may  introduce  for  use  in  the  construction  of 
said  vessels. 

"All  i)laces  accessible  to  these,  or  other  vessels  of  the  United  States, 
upon  the  said  Bolivian  tributaries  of  the  Amazon  or  La  Plata,  shall  bo 
considered  as  ports  open  to  loreign  commerce  and  subject  to  the  pro- 
visions of  this  treaty,  under  such  regulations  as  the  Government  may 
deem  necessary  to  establish  for  the  collection  of  custom  house,  port, 
lighthouse,  police,  and  pilot  duties.  And  such  vessel  may  discbarge 
and  receive  freight  and  cargo,  being  effects  of  the  country  or  foreign, 
at  anj'  one  of  said  ])orts,  notwithstanding  the  provisions  of  article  3." 

On  December  7,  1800,  tlie  Brazilian  Government,  by  an  imperial  de- 
cree, to  take  effect  on  September  7,  1867,  opened  the  Amazon  to  the 

2G4 


CHAP.  YI.]  PERU.  K  l^"^- 

inercbaut  vessels  of  all  nationalities ;  and  on  December  17, 1868,  a  decree 
was  issued  by  the  President  of  Peru  to  the  same  effect. 

See  Lawrence's  Whcatoa  (etl.  18G3),  notes  303-30.') ;  Peruvian  Treaties,  Lima- 
1S7G;  7  Ovi6ao,  108-134  ;  cited  by  Mr.  Schuyler's  Am.  Diplom.,  344 ;  Engel, 
hart,  du  Regime  des  flcaves,  1870;  Maury  on  Navigation  of  the  Amazon, 
House  Mis.  Doc.  22,  33d  Cong.,  1st  sess. ;  Kevue  de  droit  int.,  1880,  No.  2, 
159;  Caratheodory,  du  droit  int.  concernant  les  grands  cours  d'eau,  1801 ; 
Fiore,  droit  int.  (1885),  ^  701.     See  also  distinctions  taken,  supra,  ?  40. 

Under  the  treaty  of  1851  with  Peru  tlic  United  States  are  not  bound 
to  pay  a  consul  of  tbe  Peruvian  Government  the  value  of  i)roperty  be- 
longiugto  a  deceased  Peruvian,  on  whose  estate  the  consul  was  entitled 
to  administer,  wbich  may  have  been  unjustly  detained  and  administered 
by  a  local  public  administrator. 
9  Op.,  383,  Black,  1859. 

An  award  under  the  convention  with  Peru  of  18G3  "payable  in  cur- 
rent money  of  the  United  States,"  may  legally  be  paid  in  Treasury  notes 
or  in  specie. 

11  Op.,  52,  Bates,  1804. 

(Questions  concerning  intervention  in  Peru  are  discussed,  supra,  §  59. 

"  The  undersigned,  minister  resident  of  Peru,  has  the  honor  to  inform 
his  excellency  the  Secretary  of  State  of  the  United  States,  that  he 
has  received  orders  from  his  Government  to  notify  that  of  the  United 
States  that  that  of  Peru,  in  nse  of  the  authority  which  the  first  para- 
graph of  article  forty  of  the  treaty  of  friendship,  commerce,  and  naviga- 
tion concedes  to  it,  concluded  at  Lima,  on  the  2Gth  day  of  July,  1851, 
and  the  ratifications  of  which  were  exchanged  at  Washington  on  the 
IGtli  of  July,  1852,  declares  that  the  said  treaty  shall  altogether  cease 
and  determine  on  the  expiration  of  one  year  from  the  present  notice. 

"  The  undersigned  has  also  received  from  his  Government  the  express 
order  to  make  known  to  that  of  his  excellency  the  Secretary  of  State 
of  the  United  States,  that  this  measure  does  not  in  any  manner  involve 
the  intention  of  interrupting  the  cordial  relations  which  exist  between 
the  two  countries,  its  purpose  being  to  restore  to  them  their  full  liberty, 
either  to  declare  this  treaty  in  force,  or  to  negotiate  another  which  may 
be  more  advantageous  to  the  interests  of  both  nations." 

Mr.  Barreda,  minister  of  Pern,  to  Mr.  Seward,  Sec.  of  State,  Dec.  9,  1802.  MSS. 
Notes,  Peru. 

"The  undersigned,  Secretary  of  State  of  the  United  States,  has  the 
honor  to  acknowledge  the  receipt  of  the  note  of  Senor  F.  L.  Barreda, 
minister  resident  of  the  Pepublic  of  Peru,  of  the  0th  instant,  in  which, 
pursuant  to  instructions  received  from  his  Government,  notice  is  given 
of  its  intention  to  terminate  and  conclude  the  treaty  of  2G  July,  1851, 
between  the  United  States  and  Peru,  within  one  year  fi^om  the  date  of 
tliis  notification,  which  is  not  intended  as  an  indication  of  any  disi)0si- 
lion  on  the  part  of  Peru  to  interrupt  the  cordial  relations  now  existing, 
but  iiicicly  to  leav(!  the  two  Governments  at  liberty  eilher  to  declare 

2G5 


§§  158,  159.]  TREATIES.  [CIIAP.  VI. 

tlio  oontiiiuauct'  oi'  llic  present  treaty,  or  to  negotiate  another  more  con- 
ducive to  mutual  iuterests. 

"The  Government  of  the  United  States  cannot  but  be  gratitied  that 
that  of  Peru  has  taken  this  step,  in  order  that  it  may  be  free  to  enter 
into  conventional  stipulations  of  the  most  liberal  character,  if  it  should 
be  found  more  ex[)edient  to  frame  a  new  than  to  continue  in  force  the 
existing  treaty  ;  lie,  therefore,  contents  himself  with  acknowledging  the 
receipt  of  this  oflici;il  notilication,  assuring  Mr.  Larreda  that  the  Gov- 
ernment of  the  United  States  will  promptly  respond  to  the  liberal  and 
enlightened  intentions  of  Peru  in  the  adoption  of  such  measures  as  may 
be  deemed  most  productive  of  those  cordial  relations  which  it  is  equally 
the  interest  as  it  is  undoubtedly  the  object  of  both  to  maintain." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Barreda,  Dec.  15,  18C2.    MSS.  Notes,  Peru; 

quoted  iu  Mr.  J.  C.  B.  Davis,  Notes,  «S:c. 
As  to  Peruvian  waters,  see  siqira,  ^  30. 

(21)   POKTL'GAL. 

§  158. 

The  second  article  of  the  treaty  with  Portugal  of  August  20,  1840, 
did  not  restrict  either  party  from  laying  discriminating  duties  on  mer- 
chandise not  the  growth  or  production  of  the  nation  of  the  vessel 
carrying  the  same  into  the  port  of  the  other  nation. 
Oiaiield  V.  Marriott,  10  How.,  146. 

(22)  Russia. 
§  159. 

The  message  of  President  Monroe,  communicating  to  the  Senate  the 
convention  of  December  15,  1824,  is  contained  in  Senate  Doc.  Ko.  384, 
18th  Cong.,  2d  sess.,  5  Am.  St.  Pap.  (For.  IJel.),  432.  In  this  cor- 
respondence the  respective  titles  of  liussia  and  of  Great  Britain  to  the 
northwest  coast  of  North  America  are  discussed. 

The  convention  of  April  5,  1824  (concluded  April  5-17),  is  given  in 
House  Doc.  397,  18th  Cong.,  2d  sess.;  5  Am.  St.  Pap.  (For.  Eel.),  583. 

For  the  circumstances  atteodinp;  the  negotialiouof  the  commercial  treaty  with 
Russia  in  1832,  see  1  Curtis'  Buchanan,  171 ;  1  Benton's  Thirty  Years,  606. 

As  to  citizenship  iu  Alaska,  see  infra,  ^  187. 

As  to  Russia's  claim  to  Northwestern  Pacific,  sec  supra,  $  32 ;  and  see  also  2 
Lyman's  Diplomacy  of  the  U.  S.,  ch.  xi. 

As  to  treaty  of  1632  in  its  bearings  on  citizenship,  see  Mr.  Blaine  to  Mr.  I'oster, 
July  28,  1881,  quoted  supra,  $  G.'i ;  also  Mr.  Frelinghuysen  to  Mr.  Noar, 
June  14,  1882,  ivfra,  ^  189;  and  Kio  v.  U.S.,  27  Fed.  Rep.,  351,  Uifra,  ^  187. 

As  to  Russia's  position  in  reference  to  expatriation,  sec  infra,  ^  171. 

As  to  Russia's  prosecution  of  Jews,  supra,  ^  55. 

"The  convention  with  Eussia  will,  I  presume,  be  very  satisfactory  to 
the  nation.     It  consists  of  six  articles.    By  the  first  it  is  stipulated 
that  the  citizens  and  subjects  of  the  two  parties  shall  not  be  disturbed 
2GG 


CHAP.  VI.]  RUSSIA.  [§  159. 

ill  iiavigatiiij^'  the  great  Pacific  Oceaii  nor  in  landing  on  the  coast  (at 
points  wbicn  are  not  already  occupied)  for  the  purpose  of  commerce 
with  the  natives,  under  the  following  restrictions  :  Article  2.  That  the 
citizens  of  the  United  States  shall  not  land  at  any  point  where  there  is 
a  Eussiau  establishment  without  permission  from  the  governor  or  com- 
mandant, reciprocated  as  to  Russians  in  our  favor.  3.  ISTo  establish- 
ment shall  be  formed  by  citizens  of  the  United  States,  nor  under  their 
authority,  on  the  northwest  coast  of  America,  nor  in  the  adjacent  isl- 
ands, north  of  o4<^  40'  north  latitude  j  nor  by  Eussians  south  of  that 
latitude.  4.  For  ten  years  from  the  signature  of  the  treaty  the  vessels 
of  the  two  powers  and  of  their  citizens  and  subjects  may  reciprocally 
frequent,  without  impediment,  the  interior  seas,  gulfs,  harbors,  and 
creeks  on  the  coast  to  fish  and  trade  with  the  natives.  5.  From  this 
privilege  of  trade  are  excepted  spirituous  liquors,  arms,  swords,  powder, 
and  munitions  of  war  of  every  kind.  Both  powers  agree  to  give  effect 
to  this  provision,  it  being  stipulated  that  the  vessels  of  neither  shall 
visit  or  detain  the  vessels  of  the  other,  by  the  seizure  of  merchandise  or 
any  measure  of  force,  which  may  be  engaged  in  this  commerce ;  the 
high  contracting  parties  reserving  to  themselves  the  right  to  fix  and 
inflict  the  penalties  on  any  breaches  of  the  article.  The  sixth  requires 
that  the  ratifications  be  exchanged  in  ten  months  from  its  signature. 

"  By  this  convention  the  claim  to  the  '  mare  clausum  '  is  given  up,  a 
very  high  northern  latitude  is  established  for  our  boundary  with  Eus- 
sia,  and  our  trade  with  the  Indians  placed  for  ten  years  on  a  perfectly 
free  footing,  and  after  that  term  left  open  for  negotiation.  The  British 
Government  had,  at  our  suggestion,  agreed  to  treat  in  concert  with  us 
on  both  topics,  the  navigation  and  boundaries,  including  the  trade  with 
the  Indians,  but  on  seeing  that  i)assage  in  the  message  which  discoun- 
tenanced the  idea  of  further  colonization  on  this  continent,  declined  it, 
on  the  presumption  that  it  would  give  offense  to  Eussia,  a  reason  which 
was  communicated  by  Mr.  Bagot  to  the  Eussiau  Government  and  also 
to  Mr,  Middleton.  By  entering  into  the  negotiation  with  us  singly,  and 
conceding  to  us  these  points,  especially  that  relating  to  navigation,  the 
Emperor  has  shown  great  respect  for  the  United  States.  England  will, 
of  course,  have  a  similar  stii^ulatiou  in  favor  of  the  free  navigation  of 
the  Pacific,  but  we  shall  have  the  credit  of  having  taken  the  lead  in 
the  affair.  I  think,  also,  that  the  event  derives  additional  importance 
from  the  consideration  that  the  treaty  has  been  coucluded  since  the 
receipt  at  Petersburg  of  the  message  at  the  opening  of  the  last  session 
of  Congress,  which  expressed  sentiments  in  regard  to  our  i)rinciples 
and  hemisphere  adverse  to  those  entertained  by  the  holy  alliance." 

Piesidout  Monroe  to  Mr.  Madison,  Aug,  2, 1824,     Madison  MSS.,  Dcpt.  of  Stiilo. 

"From  thecomraeiicementof  their  intercourse  with  Eussia,  the  United 
States  have  specifically  and  i)roMiinently  had  in  view: 

"1.  TIk;  negotiation  of  a  treaty  or  convcnlion  of  connnerco  and  na\i- 

2(;7 


§  159.]  TREATIES.  [chap.  VI. 

gation  upon  those  principles  of  liberal  reciprocity  wliich  we  have  been 
so  anxious  to  establish  with  all  other  natious;  and 

''2.  The  establishment,  by  similar  conventional  stipulations,  of  rules 
for  refjulating  the  rights  of  the  respective  parties,  in  the  following  rela- 
tions : 

"First,  where  the  one  is  at  war  and  the  other  neutral; 

"  Secondly,  where  both  arc  at  war  with  the  same  power  ; 

"Thirdly,  where  they  are  unfortunately  at  war  with  each  other. 

"For  a  considerable  time  our  desire  in  regard  to  both  of  these  prin- 
cii)al  points  was  frustrated  by  the  Russian  Government  uniformly  do- 
dining  to  treat  upon  the  subjects  involved  in  them. 

''  The  main  i)()ints  here  adverted  to,  however,  were  not  necessarily 
connected;  and  in  the  year  1832,  Mr.  Buchanan,  who  arrived  at  St. 
Petersburg  in  the  month  of  June  of  that  year,  perceiving  the  Russian 
Government  not  unfavorable  to  the  first  object  of  his  mission,  promptly 
entered  upon  the  negotiation  of  a  commercial  treaty,  with  a  degree  of 
zeal  and  ability  which  happily  crowned  his  efforts  with  success,  and 
linally  resulted  in  the  conclusion  of  a  treaty  of  commerce  and  naviga- 
tion between  the  United  States  and  Russia  on  the  18th  December,  1832. 
The  treaty  was  ratified  by  the  President,  by  and  with  the  advice  and 
consent  of  the  Senate,  on  the  8th  April,  1833,  the  ratifications  were  ex- 
changed at  Washington  on  the  eleventh  day  of  May  following,  and  by 
this  instrument,  thus  finally  concluded,  the  first  principal  point  I  have 
already  adverted  to  may  be  considered  as  entirely  disposed  of,  and  as 
requiring  no  further  attention  on  your  part. 

"Mr.  Buchanan  applied  himself  with  equal  promptitude  to  the  second 
point  of  his  mission ;  but  the  Imperial  Government  declining  at  that 
time  to  entertain  any  propositions  rehitive  to  the  conclusion  of  a  treaty 
upon  this  subject,  he  returned  with  the  leave  of  the  President  to  the 
United  States." 

Mr.  McLaue,  Sec.  of  State,  to  Mr.  Dickerson,  June  126,  1834.     MSS.  Inst.,  Rus- 
sia. 

"  The  use  of  the  lands  on  which  stood  the  buildings,  once  allowed  to 
the  Russian-American  Company,  was  extinguished  by  the  treaty  of 
1867." 

14  Op.,  302,  Williams,  1873. 

Although  article  G  of  the  treaty  with  Russia  of  1832  stipulate<l  that 
no  higher  duties  should  be  imposed  on  goods  imported  from  Russia  than 
on  like  articles  imported  from  other  places,  if  Congress  has  imposed  a 
different  duty  ui)on  Russian  hemp,  the  law  must  be  enforced. 
Taylor  v.  Morton,  2  Cartis,  454. 

It  being  provided  by  article  G  of  the  treaty  between   the  United 
States  and  Russia,  of  1832,  that  no  higher  duties  shall  be  imposed  on 
the  importatiim  into  the  United  States  of  any  article  the  produce  or 
2G8 


CHAP.  VI.]  RUSSIA.  [§  159. 

mauufacture  of  Eussia  tliau  are  or  sliall  be  payable  on  the  like  article 
being  the  produce  or  mauufacture  of  any  other  foreigu  country,  and 
Congress  having,  by  section  1  of  act  18C1  (12  Stat.,  2532),  imposed  a  duty 
on  unmanufactured  Russian  hemp  of  $40  per  ton,  and  on  raanila  and 
other  hemps  of  India  of  $25  per  ton,  such  legislation  is  a  declaration  by 
Congress  that  such  provision  of  the  treaty  shall  no  longer  operate  as 
the  law  of  the  land  in  respect  to  the  dutj^  on  unmanufactured  Eussia 
hemp. 

Ropes  r.  Clincb,  8  Blatcb.,  304. 

The  action  of  Senate  and  House  on  the  treaty  for  the  purchase  of 
Alaska  is  detailed  su2)ra  §  131«.  For  a  history  of  the  negotiation  see 
Scidmore's  Alaska,  201^';   Bancroft's  Alaska,  594^. 

"  Congress  (on  the  declaration  of  the  armed  neutrality  of  1780)  did 
not  delay  to  send  a  minister  to  Eussia,  for  the  armed  neutrality  presented 
an  admirable  occasion  of  attackingEngland  in  a  vital  organ.  Another 
method  of  expressing  their  approbation  of  the  principles  of  that  confed- 
eracy was,  also,  adopted.  We  copy  from  the  journal  of  October,  1780, 
the  following  paragraph  :  Congress,  willing  to  testify  their  regards  tj 
the  rights  of  commerce,  and  their  respect  for  the  Sovereign  who  hath  pro- 
posed, and  the  powers  who  have  approved  the  said  regulations,  'resolve 
that  the  board  of  admiralty  prepare  and  report  instructions  for  the  com- 
manders of  armed  vessels  commissioned  by  the  United  States,  conform- 
able to  the  principles  contained  in  the  declaration  of  the  empress  of  all 
the  Eussias  on  the  rights  of  neutral  vessels.'  Francis  Dana,  of  Mas- 
sachusetts, was  elected,  in  December,  1780,  minister  j)lenipotentiary  to 
the  court  of  St.  Petersburg ;  he  was  authorized  '■  to  accede  to  the  con- 
vention of  the  said  neutral  and  belligerent  powers  protecting  the  freedom 
of  commerce  and  the  rights  of  nations,'  and  to  propose  a  treaty  of  amity 
and  commerce.  This  is  the  only  instance  in  the  history  of  the  country 
in  which  the  United  States  volunteered  themselves  a  party  to  a  league 
of  sovereigns  in  Europe,  a  proceeding  that  in  consequence  of  the  ar- 
rangements that  have  succeeded  the  pacification  of  1815,  would,  at  this 
day,  have  excited  an  intense  and  profound  interest." 

1  Lymau's  Diplomacy  of  the  U.  S.,  424. 

But  "  Mr.  Dana  having  passed  nearl3'  a  year  in  Russia,  never  having 
been  presented  at  court,  and  not  seeing  the  least  prosi)ect  of  attaining 
a  single  object  of  his  mission,  left  St.  Petersburg  in  August,  1783,  for 
the  United  States.  It  was  a  long  interval  before  that  court  was  again 
visited  by  an  American  minister." 

Ihid,  4:31. 

Mr.  Dana  not  having  been  recognized  by  the  Russian  court,  there  was 
no  opportunity  for  him  to  proj)ose  to  accede  to  an  armed  neutrality. 
After  the  treaty  of  peace  with  Great  Britain,  liowever,  Congress  was  not 
disposed  to  enter  inio  any  alliances  which  might  disturb  that  peace.  The 
armed  neutrality  having  expired  with  the  general  pacification,  the  United 
States  was  iclieved  from  any  project  to  join  in  its  stipulations.  But 
whenthe  United  Provin(M.'S  pr(ji)osed  a  renewal  of  such  stipulations,  Con- 
gress resolved  that  "  whereas  the  i)rimary  object  of  the  resolution  of 
October  8,  1780,  and  of  the  commission  and  instructions  to  .Mr.  Dana 
relative  to  tlie  accession  of  the  United  States  to  the  neutral  confederacy, 

209 


§  159.]  TREATIES.  [chap.  VI. 

110  loiijier  can  opoiate ;  and  as  llic  true  iiitcrest  ofthese  States  requires 
that  they  should  be  as  little  as  po!«sible  entaii'^led  in  the  politics  and 
controversies  of  European  nations,  iL  is  inexpedient  to  renew  the  said 
powers  either  to  Mr.  Dana  or  to  the  other  ministers  of  these  United  States 
in  Europe;  but  inasniueh  as  the  liberal  prineii)les  on  whieh  the  said  con- 
federacy was  established  are  conceived  to  be,  in  jjeneral,  favorable  to 
the  interests  of  nations,  and  i)articularly  to  those  of  the  United  States, 
and  onf;;ht  in  that  view  to  be  ])ronioted  by  the  latter,  so  far  as  will  con- 
sist with  their  fundamental  policy,  resolved,  that  the  ministers  plenipo- 
tentiary ofthese  United  States  in  ne.notiating  a  i)eaeo  be.  and  they  are 
hereby,  instructed,  in  case  they  should  conii)rise  in  the  definitive  treaty 
any  stipulations  amounting  to  a  reco«:;nition  of  the  rights  of  neutral 
nations,  to  avoid  accompanying  them  l)y  any  engagements  which  shall 
oblige  the  contracting  parties  to  support  these  stipulations  by  arms." 

"  As  you  have  truly  remarked,  sir,  llussia  was  one  of  the  first  powers 
to  hold  out  the  hand  of  fellowship  to  us  on  our  appearance  in  the  family 
of  nations.  Chief  Justice  Dana  of  this  State  was  sent  as  minister  to 
Kussia  in  1780,  and  John  Quincy  Adams,  then  a  lad  of  fourteen,  was 
appointed  by  Congress  his  i)rivate  secretary,  the  youngest  ])erson  per- 
haps ever  appointed  to  such  an  oflice  in  this  country.  *  *  *  Mr. 
Harris,  the  British  minister,  afterwards  Lord  Malmesbury,  succeeded 
in  preventing  the  immediate  recognition  of  Mr.  Dana  by  the  Em])ress 
Catherine,  but  the  moment  itcould  be  done  without  offence  to  Great  Brit- 
ain, that  is,  as  soon  as  the  treaty  of  17S3  was  concluded,  she  recognized 
this  infant  Ive])ublic  with  cordiality.  *  *  *  During  the  war  of  1812 
with  England,  Bussia  tendered  her  mediation  between  the  two  countries. 
It  was  not  accepted  by  Great  Britain,  but  theiiroposal  resultedina  direct 
negotiationand  the  conclusion  of  the  treaty  of  Ghent.  *  *  •  In  that 
remarkable  letterof  Prince  GortschakotT,the  Eussian  ministerfor  foreign 
affairs,  dated  10th  Jidy,  18G1,  and  addressed  to  the  Bussian  envoy  in 
this  country,  to  becommuuicated  to  the  Secretary  of  State,  he  uses  this 
memorable  language :  '  In  spite  of  the  diversity  of  their  constitutions  and 
of  their  interests,  i)erhaps,  even  because  of  their  diversity,  Providence 
seems  to  urge  the  United  States  to  draw  closer  the  traditional  bond,  as 
the  basis  and  reri/  condition  of  their  political  existence.  In  any  event 
the  sacrifices  they  might  imjiose  upon  themselves  to  maintain  it  (the 
Union,  then  threatened  by  secession)  are  not  tobecomi)ared  with  those 
which  dissolution  would  bring  after  it.  United,  they  perfect  each  other; 
separated  from  each  other,  they  are  paralyzed.' " 

Mr.  Everett's  address  on  Juno  7,  1864,  on  the  rcciptiou  of  tlio  Knssian  admiral. 
4  Everett's  Orations,  GOGiT. 

"  The  correspondence  which  was  transmitted  to  the  Senate  with  the 
convention  of  1824  may  be  found  in  volume  5  of  the  folio  edition  of  the 
Foreign  Belations,  pages  432  to  471. 

"Bussia,  Great  Britain,  and  the  United  States  were  each  claimants 
of  an  indefinite  coast  line  on  the  Pacific  south  of  latitude  50°.  The 
claims  of  Bussia,  which  extended  to  the  high  seas,  are  thus  stated  in 
John  Quincy  Adams's  instructions  to  Henry  Middleton :  'Thei)reten- 
sions  of  the  Imperial  Government  extend  to  an  exclusive  territorial 
jurisdiction  from  the  forty  fifth  degree  of  north  latitude  on  the  Asiatic 
coast,  to  the  latitude  of  fifty  one  north  on  the  western  coast  of  the 
American  continent,  ami  they  assume  the  right  of  interdicting  the  «ay- 
igafion  and  the  fishery  of  all  other  nations  to  the  extent  of  one  hundred 

270 


CHAP.  VI.]  KUSSIA.  [§  159. 

miles  from  the  wLole  of  tbat  coast.  The  United  States  can  admit  no 
part  of  these  claims.  *  *  *  They  can  in  nowise  admit  the  right  of 
Russia  to  exclusive  territorial  possession  on  any  part  of  the  continent 
of  Xorth  America  south  of  the  GOth  degree  of  north  latitude.  They 
will  maintain  the  right  of  their  citizens,  enjoyed  without  interruption 
since  the  establishment  of  their  independence,  of  free  trade  with  the 
original  natives  of  the  northwest  coast  throughout  its  whole  extent.' 

"The  negotiations  under  these  instructions  were  delayed  under  the 
supposition  that  Great  Britain  would  take  part  in  them.  When  Mid- 
dleton  had  reason  to  suppose  that  separate  negotiations  were  to  take 
place  between  Great  Britain  and  Russia,  he  made  known  to  both  sides 
the  territorial  rights  of  the  United  States.  Soon  after  that  he  began  his 
negotiations  with  Xesselrode.  At  the  first  interview  he  found  him  *as 
well  disposed  to  treat  with  us  as  ever.'  In  less  than  two  months  from 
the  beginning  of  the  negotiations  the  convention  was  signed. 

"  The  fourth  article  of  this  treaty  was  to  remain  in  force  for  ten  years. 
At  the  expiration  of  that  time  the  Eussian  minister  at  Washington 
gave  notice  to  the  Secretary  of  State  that  American  sea-captains  were 
infringing  upon  what  Eussia  regarded  as  her  rights,  and  suggested  that 
'the  American  public  should  be  informed  of  the  actual  state  of  the  re- 
lations on  this  subject,'  adding  that  he  had  been  '  ordered  to  invite  the 
Government  of  the  United  States  to  take  the  most  suitable  measures 
with  regard  to  it.' 

"Mr.  Forsyth  instructed  negotiations  to  be  opened  at  St.  Petersburg 
for  the  purpose  of  an  indefinite  extension  of  the  treaty ;  but  they  proved 
to  be  fruitless.  Kesselrode  closed  them  by  saying  that  it  was  '  impossi- 
ble for  the  Imperial  Government  to  accede  to  the  proposition.  *  *  * 
The  renewal  of  the  fourth  article  could  hardly  contribute  to  extend,  in 
a  reciprocally  useful  manner,  the  commercial  relations  between  Eussia 
and  the  United  States  of  America;  or,  by  consequence,  answer  the  con- 
stant solicitude  of  the  Imperial  Government  to  cement  more  and  more, 
and  in  a  mutual  interest,  the  friendly  intelligence  which  it  is  always 
happy  to  cultivate  with  the  Government  of  the  Union.' 

"These  questions  were  set  at  rest  by  the  cession  of  Alaska.  The 
treaty  was  communicated  to  Congress  on  the  Gth  of  July,  1807,  with  a 
request  for  necessary  legislation.  The  steps  taken  in  the  actual  trans- 
fer of  the  ceded  territory  are  set  forth  in  the  President's  message  of  Jan- 
uary 27,  18GS.  A  copy  of  the  treaty  of  cession,  and  of  the  correspond- 
ence relating  to  it,  and  other  correspondence,  with  'information  in  rela- 
tion to  Eussian  America,'  including  Mr.  Sumner's  speech,  was  commu- 
nicated to  the  House  on  the  17th  of  February,  1SG8. 

"The  subject  of  the  appropriation  to  carry  out  this  treaty  was  dis- 
cussed at  length  in  the  House.  The  chairman  of  the  Committee  on 
Foreign  Affairs  rejiorted  in  favor  of  it.  The  act  was  at  last  passed  on 
the  27th  of  July.  /Suj)ra,  §  131a. 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

As  to  contested  boundary   between   Alaska  and  Britisli  Columbia,  soo   Mr. 
Bayard,  Sec.  of  State,  to  Mr.  Phelps,  Nov.  20,  1885.     MSS.  Inst.,  Gr.  Brit. 

The  correspondence  with  Eussia  in  1878,  respecting  the  boundary 
between  Canada  and  Alaska  will  be  found  in  Brit,  and  For.  St.  Pai).. 
1877-'78,  vol.  09. 

Papers  relative  to  the  conflicting  titles  of  Eussia  and  of  Great  Britain 
on  the  northwest  coast  of  North  America,  arc  given  in  House  Doc.  328, 
1st  sess.,  17th  Cong.;  4  Am.  St.  Pap.  (For.  Eel.,  8")!.) 

271 


§§  160,  161.]  TREATIES.  [chap.  VI. 

"Alaska  seal  is  iu;\v  the  only  seal  in  the  market,  since  the  rookeries 
of  the  Antarctic  Sea  have  been  so  persistently  linnkHl  that  the  seals 
have  become  extinct.  *  ♦  *  From  the  date  of  the  lease  in  1870  up 
to  March,  18S4,  the  Alaska  Commercial  Company  (to  whom  the  United 
States  has  {jiven  a  monopoly  of  the  Prybylolf  rookeries)  has  i)aid 
$4,GG2,020.  IIavin<,'  invested\S7,200,000  in  the  i)nrchase  of  the  terri- 
tory, comi)risinjj:  an  area  of  58,t)17  square  miles,  the  Government  has 
derived  an  annual  income  ranginj;  from  !^2()L>,n0U  to  8317,000,  Irom  two 
of  the  smallest  islands  otf  its  coast." 

Scidmore's  Alaska,  :5Il.     8it>  Baiicrori's  Alaska,  <lia[).  "JH,  -J'.). 

This  gives  to  the  United  States  four  percent,  on  the  purchase  monej' 
of  Alaska. 

(23)  SArvDixiA. 
§  IGO. 

Under  the  treaty  with  Sardinia,  allowing  "any  person  holding  real  es- 
tate within  thcterritoriesof  oueof  the  contracting  parties''  on  whom  real 
estate  could  descend  but  for  their  alienage,  a  reasonable  time  to  sell  such 
real  estate  etc.,  without  paying  any  other  taxes  than  those  inhabitants 
of  the  country  in  which  such  real  estate  is  situated  are  subject,  it  is  still 
open  to  question  whether  an  inheritance  tax  in  Louisiana  bears  upon 
residents  in  Italy  and  subjects  of  the  King  of  Italy  who  arc  heirs  to 
real  estate  in  that  State. 

Mr.  Fisb,  Sic.  of  State,  to  Mr.  Colobiano,  February,  1670.  MSS.  Notes,  Italy; 
citing  State  r.  Poydrass,  V  La.  Anu.,  165,  hoklinj;  suck  tax  to  apply,  and 
Frederickson  r.  La.,*23  IIox\'.,  445,  -where  tbe  qnostioii  i.s  left  open.  See  as 
to  such  limitations  siqyra,  ^  138. 

(24)  Spaix. 

(a)   TKEATY  OF   1795. 

§1G1. 

The  correspondence  of  Messrs.  Carmichael  and  Short,  United  States 
ministers  at  ^Madrid  in  1792,  in  reference  to  the  Florida  boundary,  to 
Indian  incursions  aided  by  Spain,  to  commercial  restraints,  and  to  the 
navigation  of  the  Mississippi,  is  given  in  1  Am.  St.  Pap.  (For.  llel.),  2G0, 
304. 

The  delays  of  Spain  in  making  treaty  with  the  United  States  are 
noticed  in  7  John  Adams's  Works,  115,  385,  380,485,  40G,  517,  520,  5G5, 
582,  G44. 

The  papers  in  respect  to  the  negotiations  by  Mr.  Pinckney,  minister 
of  the  United  States,  with  the  Spanish  ministry  in  1705  are  given  in  1 
Am.  St.  Pap.  (For.  Kel.),  535^.,  together  with  the  projects  and  counter- 
projects. 

The  corresi)ondencc  as  to  the  convention  of  August  11, 1802,  is  given 
in  1  Am.  St.  i'ap.  (For.  Eel.),  025  ff;  that  connected  with  the  boundary 
negotiations  of  1805  in  2  Am.  St.  Pap.  (For.  Eel.),  506  ff.  The  ratifica- 
tion of  the  treaty  is  noticed  in  2  Madison's  Writings,  73,  75,  86,  04. 

272 


CHAP.  VI.]  SPAIN:    TREATY    OF    1795  [§161. 

The  9tb  article  of  the  treiity  of  1795  was  the  subject  of  much  dis- 
cussion in  the  Amistad  case,  in  1839  and  the  imme<iiatel.v  succeeding 
years.  According  to  a  statement  of  Mr.  Holabiid,  U.  S.  district  attor- 
ney for  Connecticut,  addressed,  September  5,  1839,  to  Mr.  Forsyth,  Sec- 
retary of  State,  "certain  blacks  (alleged  to  be  slaves)  were  taken,  in 
June,  1839,  on  board  the  schooner  Amistad  at  a  port  in  the  island  of 
Cuba  to  transport  to  another  port  in  the  sa.'iie  island  ;  when  from  seven 
to  ten  leagues  out  they  murdered  the  captain  and  mate  and  took  posses- 
sion of  the  schooner  (27tli  or  28th  of  June).  On  the  20th  of  August 
they  were  discovered  off  i\Iontauk  Point  by  the  crew  of  the  surveying 
brig  Washington,  commanded  by  Lieutenant  Gedney,  and  by  him 
boarded  and  brought  into  the  port  of  New  London." 

Thirty-nine  of  the  revolters  were  committed  for  trial  in  Connecticut, 
and  were  also  "libelled"  on  Sept.  19,  1839,  by  the  United  States  dis- 
trict attorney,  as  property  of  Spanish  subjects,  and  hence  to  be  le- 
stored  under  the  treaty.  Judge  Thompson,  sitting  in  the  U.  S.  circuit 
court,  decided  that  tbat  court  had  no  jurisdiction  of  the  criminal 
oflence  charged,  it  having  been  committed  on  a  Spanish  vessel  on  the 
high  seas  (10  J.  Q.  Adams'  Memoirs,  132).  He  refused  to  release  the 
prisoners,  however,  as  they  were  claimed  as  i)roi)erty  under  the  libel 
filed  in  the  district  court.  To  the  libel  the  negroes  in  arrest  tiled  an 
answer  to  the  effect  that  they  were  free-born  Africans,  who  had  been 
wrongfully  kidna]iped.  The  court  rejected  the  claims  of  the  alleged 
owners  for  the  restoration  of  the  negroes,  but  decreed  that  they  should 
be  delivered  to  the  President  of  the  United  States  for  trans|)ortatiou  to 
Africa.  This  ruling  was  affirmed  by  the  circuit  court,  and  afterwards, 
in  1841,  (Baldwin,  J.,  being  the  sole  dissenter,)  by  the  Su])reme  Court 
of  the  United  States,  (10  Peters,  518)  with  the  modification  that  the 
negroes  in  question  were  to  be  declared  free.  Tbe  ground  on  which 
this  decision  of  the  Supreme  Court  is  put  is  stated  below  in  its  proper 
place  in  this  section. 

See  Mr.  Holabird,  Dist.  Att'y.,  to  Mr.  Forsytli,  Doc.  21,  183U;  House  Ex.  Doc. 
188,  2Gth  Cong.  Ist  sess. ;  Senate  Ex.  Doc.  179,  2f)th  Coug.  M  sess. ;  op.  of 
Att'y.  Gen.  Grundy,  3  Op.  48fi;  (in  whicli  opinion  Mr.  Grundy,  in  Nov., 
1839,  advised  the  President  to  deliver  the  negroe.s  to  Spain).  Hastings' 
Am.  Politics,  Frank.  Sq.  Ed.,  139;  10  J.  Q.  Adams' Mem.,  132,  /,  429,/, 
441,  narrating  Mr.  Adams'  course  as  counsel  for  the  negroes. 

The  owners  of  the  Amistad  subsequently  made  application  to  the 
Government  of  the  United  States  for  indemnity  for  the  losses  sustained 
by  them  through  tlie  alleged  failure  of  the  United  States  to  comply  with 
the  treaty.  ]\Ir.  Buchanan,  Secretary  of  State,  on  Maich  19,  1840,  rec- 
ommended an  appro])riation  of  fifty  thousand  dollars  foi-  this  purpose. 
The  House  refused  to  make  such  an  a[)proi)riation.  It  was  added  by 
the  Senate  as  an  amendment  to  the  civil  and  dijtlomatic  bill.  The 
amendment,  however,  did  not  ]iass  the  House,  which,  the  next  session, 
again  rejected  the  appropriation. 

See  President  Fillmore's  message  of  Feb.  14,  18.'>1,  with  actouipanying  papers. 
Senate  Ex.  Doc.  29,  3lHtCong.,  2d  sess. 

A  report  in  the  Senate,  by  Mr.  Mason,  of  l'\'biuary  19,  1851,  recom- 
mending payment  of  the  claim,  is  found  in  Senate  Kep.  Couk  .'JOI,  31st 
Cong.,  2d  sess.  See  further  nx'ssage  of  President  Tyler,  recommending 
payment,  Hou.se  Ex.  Doc.  191,  27th  Coug.,  3d  sess.;  House  Ex.  Doc.  83, 

28th  Copg.,  1st  sess. 

S.  Mis.  102— VOL.  II 18  273 


§  161.]  TREATIES.  [chap.  VI. 

President  Fillmore's  message  of  January  19, 1853,  recommending  pay- 
ment of  the  claim  is  in  Senate  Ex.  Doc.  11),  o2d  Cong.,  2d  sess. 

It  i.s  stated,  however,  by  I\Ir.  Fillmore,  that  "in  an  elaborate  letter  of 
Mr.  Web.stcr  to  the  ('hcvalier  d'Argaiz,  on  the  1st  of  kSo])tember,  1841, 
the  opinion  is  conlidently  niaintained  that  the  claim  is  unlbnnded.''  ]\Ir. 
Fillmore  bases  his  conchision  recommending  action  on  the  message  of 
President  Polk  sustaining  the  claim,  and  on  rci)orts  of  comndttees  of 
Congress. 

Article  15  of  the  treaty  of  1795  between  the  United  States  and  Spain 
provides  that  neutral  bottoms  shall  make  neutral  goods,  bui  contains  no 
stipulation  that  enemy's  bottoms  shall  communicate  hostile  character 
to  the  cargo.  The  latter  is  not  to  be  imi)lied  irom  the  insertion  of  the 
former  rule. 

The  Nereide,  9  Cr.iucb,  3S8.     Sec,  furtber,  the  Sautissiiiia  Trinidad,  7  Wheat., 
283. 

The  term  "  subjects  "iu  the  15th  article  of  the  Spanish  treaty  of 
1795,  when  applied  to  persons  owing. allegiance  to  Spain,  must  be  con- 
strued in  the  same  sense  as  the  term  "citizens  "  or  "inhabitants"  when 
applied  to  persons  owing  allegiance  to  the  United  States,  and  extends 
to  all  persons  domiciled  in  the  Spanish  dominions. 
The  Pizarro,  2  Wheat.,  227. 

The  capture  of  a  Spanish  vessel  and  cargo,  made  by  a  privateer  com 
missioned  by  the  province  of  Carthagena  while  it  had  an  organized 
Government  and  was  at  war  Avith  Spain,  cannot  be  interfered  with  by 
the  courts  of  the  United  States. 

The  Ncustra  Seiiora  de  la  Caridad,  4  Wheat.,  497. 

Article  17  of   the  treaty  with  Spain  of  1795  is   imperfect  and   in 
ojierative  so  far  as  concerns  passports,  in  consequence  of  the  omission 
to  annex  the  form  of  passport  to  the  treaty. 
The  Amiable  Isabella,  6  Wheat.,  1. 

The  form  of  the  passport  by  which  the  freedom  of  the  ship  was  to 
be  conclusively  established  never  having  been  annexed  to  the  treaty, 
the  proprietary  interest  of  the  ship  is  to  be  proved  according  to  the 
ordinary  rules  of  the  i^rize-court,  and  if  thus  shown  to  be  Spanish,  will 
protect  the  cargo  on   board,  to  whomsoever  the  latter  may  belong. 

Ibid. 
Note  by  Mr.  J.  L.  Cadwalader.— "The  form  of  passport  referred  to  in  article 
17  of  the  treaty  of  1795  is  not  annexed  either  to  the  original  treaty  signed  by  the  ne- 
gotiators, or  to  the  copy  bearing  the  ratification  of  the  King  of  Spain  on  file  in  the 
Department  of  State.  It  is  remarkable,  however,  that  to  the  Spanish  versi«.  n,  appear- 
ing in  vol.  2,  p.  429,  of  'Colecciou  de  los  Tratados  de  Paz,'  &c.,  published  at  Madrid 
in  1800,  two  forms  of  passports  in  Spanish  are  annexed— one  for  ships  navigating 
European  sca«,  and  the  otlier  for  those  navigating  American  seas.  These  forms  are 
found  in  G  Wheat.,  97.  Xo  explanation  has  been  discovered  of  these  facts.  It  is 
stated,  however,  in  a  letter  from  Jacob  Wagner  to  Mr.  Monroe,  dattd  Kovembcr  3, 
1814,  that  a  form  was  agreed  on." — Cadwalader's  Digest, 

274 


CHAP.  VI.]  SPAIN:    TREATY    OF    1795.  [§161. 

The  treaty  of  1795  with  Spaiu  prohibited  citizens  of  the  United 
States  from  taking  commissions  to  cruise  in  a  privateer  against  the 
commerce  of  S])ain,  but  not  from  serving  in  a  public  armed  vessel  of  a 
belligerent  nation. 

The  SantissiumTriuidad,7Wbeat.,  283. 

"The  United  States  have  never  claimed  any  part  of  the  territory  in- 
cluded in  the  States  of  Mississii)pi  or  Alabama  uuder  any  treaty  with 
Spain,  although  she  claimed  at  diiierent  periods  a  considerable  portion  of 
the  territory  in  both  of  those  States.  By  the  treaty  between  the  United 
States  and  Spain,  signed  at  San  Lorenzo  el  Ileal,  on  the  27th  of  October, 
1795,  the  high  contracting  parties  declare  and  agree  that  the  line  be- 
tween the  United  States  and  East  and  West  Florida  shall  be  designated 
by  a  line  beginning  on  the  Mississippi  Eiver  at  the  northernmost  part  of 
the  thirty ;first  degree  of  north  latitude,  which  from  thence  shall  be 
drawn  due  east  from  the  middle  of  the  Chattahoochee  Eiver,  &c.  This 
treaty  declares  and  agrees  that  the  line  which  was  described  in  the  treaty 
of  peace  between  Great  Britain  and  the  United  States  as  their  southern 
boundary  shall  be  the  line  which  divides  their  territory  from  East  and 
West  Florida.  The  article  does  not  import  to  be  a  cession  of  territory, 
but  the  adjustment  of  a  controversy  between  two  nations.  It  is  under- 
stood as  an  admission  that  the  riglit  was  originally  in  the  United  States. 
Had  Spain  considered  herself  as  ceding  territory,  she  could  not  have 
neglected  to  stipulate  for  the  property  of  the  inhabitants — a  stipulation 
which  every  sentiment  of  justice  and  of  national  honor  would  have 
demanded,  and  which  the  United  States  would  not  have  refused." 

McKiuley,  J.,  Pollard  t'.  Hagau,  3  How.,  225;  see  Hictey's  Lessee  t'.  Stewart, 
3  How.,  760. 

The  treaty  between  the  United  States  and  Spain  of  1795  ascertained 
and  established  an  existing  but  disputed  boundary-line,  and  prior  grants 
made  by  the  authorities  of  Spain  within  the  territory  of  Georgia,  as  as- 
certained by  that  treaty,  were  invalid. 
liobinson  r.  Minor,  10  How.,  627. 

The  20th  article  of  the  treaty  with  Spain  of  1795  does  not  extend  the 
jursidiction  of  our  courts  to  offenses  committed  in  Spain,  nor  vice  versa, 
and  according  to  the  common  law,  the  commandant  of  the  island  of 
Amelia  is  not  liable  to  any  public  i)rosecution  before  any  of  our  courts 
for  his  transactions  in  Florida. 
1  Op.,  68,  Lee,  1797. 

Mr.  John  Itandol))h,  on  January  3,  180G,  made  a  report  from  a  special 
couimittee  coiKJcmiiiiig '•  with  just  indignaliou  the  hostih' sj)irit  mani- 
fested by  the  court  of  Mjidrid  towiirds  the  (iovernnient  of  the  United 
States,  in  witiiholding  the  ratilication  of  its  convention  with  us,  jilthougli 
signed  by  its  (nvn  minister,  under  tiie  eye  of  liis  s<)v<M«'ign,  unless  with 
alterations  of  its  terms  ailecting  claims  of  the  United  Slates,  which,  by 

275 


§  161.]  TREATIES.  [chap.  VI. 

tlie  express  conditions  of  the  in.stninient  itself  were  reserved  for  future 
discussion,  as  well  as  other  hostile  acts." 

2  Am.  St.  Tap.  (For.  Kel.),  Gy.'>. 

''From  the  middle  of  1703  to  the  middle  or  close  of  1704  the  i)rol)lem 
of  ])reserviujj:  i)eace  afjpeared  to  be  dillicidt.  Great  Britain  occupied 
military  posts  within  the  United  St.ites,  on  the  northern  frontier,  and 
had  pushed  a  <iariisun  far  south  towards  Cinciniiiiti.  Spain  occupied 
Natchez,  and  proposed  to  support  the  Indiiins  who  dwelt  within  what 
are  now  the  Stales  of  .Mississippi,  Alal>ama,  ;ind  a  l<Mj;e  part  of  Georj;ia 
in  maintainin.u-  their  imlependeuce.  The  Indians  in  the  Northwest  were 
in  o|>en  hostilities.  Genet  s<'t  the  Administration  at  dehance  in  the 
Atl.intic  States,  and  ;ii)pealed  to  the  nation  to  support  him.  \Vash- 
injiton  solved  the  ilillicultyby  askin<j:  the  recall  of  Genet,  by  seudinj; 
Jay  to  London,  and  by  orderin<j  Thomas  Pinckney  to  iMadri<i  wiih  full 
power  and  authority  *  ♦  *  t{-^,j.  .,,„i  i,j  the  name  of  the  United 
States  to  meet,  coufer,  treat,  and  uej^otiate  with  the  miuisters,  commis- 
sioners, deputies,  or  plenipotentiaries  of  his  said  Majesty  |lhe  Kin;jj  of 
Spain],  bein^-  lurnished  with  sullicient  authority  of  and  concerninj;-  the 
navig.ition  of  the  river  ]\Iississippi;  and  such  other  matters  relative  to 
the  confines  of  the  territories  of  the  United  States  and  IJis  Catholic 
Miijesty,  and  the  intercourse  to  be  had  thereon,  as  the  mutual  interests 
and  freiieral  harmony  of  nei<;hborin<;-  and  friendly  nations  recpiire  to  be 
precisely  adjusted  and  rejiuiated;  and  of  and  concerninji;  tiie  p'lieral 
commerce  between  the  United  States  and  the  Kingdoms  and  dominions 
of  His  (.'atholic  M;ijesty ;  and  to  conclude  and  sij>n  a  treaty  or  treaties, 
convention  or  conventions,  thereon.'  He  also  had  a  sei)arate  power 
'to  afxree,  treat,  consult,  and  uegotiate  of  and  concerning  all  matters 
and  c.iuses  of  difference  subsistiuf?  between  the  United  States  and  his 
said  Majesty,  relative  to  the  instructions  of  his  said  Majesty,  or  of  any 
of  the  tribunals  or  authorities  of  his  said  jMaJesty,  to  his  sliijjs  of  war 
and  privateers,  of  whatsoever  date,  as  well  as  of  and  concerning  resti- 
tution or  comi)ensatiou  in  the  cases  of  cajjture  or  seizure  made  of  the 
property  of  the  citizens  of  the  United  States  by  the  said  ships  of  war 
and  privateers,  and  retribution  for  the  injuries  received  therefrom  by 
any  citizen  of  the  United  States,  and  to  conclude  and  sign  a  treaty  or 
treaties,  couventiou  or  conventions,  touching  the  premises.' 

'•Pirickney  arrived  in  Madrid  on  the  2Sth  of  June,  170.5.  Short,  who 
was  there  as  charge,  had  written  the  Government  that  the  moment  was 
opportune  for  concluding  a  treaty.  Pinckney  was  met  at  the  outset  by 
a  proposal  for  'a  triple'  alliance  between  France,  Si)ain,  and  ourselves, 
which  he  declined.  He  also  declined  to  guarantee  the  Spanish  i)osses- 
sions  in  America.  By  the  lOih  of  August  the  i)arties  began  to  put 
their  ideas  on  i>aper.  The  liist  projet  for  a  treaty  came  from  Spain, 
and  was  handed  Pinckney  by  the  Prince  of  Peace  before  the  -J3d  of 
September.  On  the  27th  of  October  the  parties  signed  a  treaty,  which 
has  tormed  the  basis  of  the  relations  between  Spain  and  the  United 
States  from  that  day  to  this. 

"It  dehned  the  southern  boundary  of  the  United  States  in  accord- 
ance with  the  definitions  in  the  treaty  with  Great  Britain.  It  conceded 
the  navigation  of  the  Mississippi,  and  gave  us  a  right  of  deposit  and 
storage  for  our  produce  at  New  Orleans.  It  eml)odied  many  of  the 
leading  commercial  provisions  of  the  i»revious  treaties  with  franco  or 
Prussia.  And  a  |)rovision  was  made  fur  a  commission  'to  terminate  all 
differences  on  account  of  the  losses  sustained  by  the  citizens  of  tUe 

27C 


CHAP.  VI.]  SPAIN:    FLORIDA    TREATY,    1816-'20.  [§  161a. 

TJDited  States,  in  conseqneuce  of  tbeir  vessels  and  cargoes  Laving  been 
taken  by  tlie  subjects  of  Ilis  Catholic  Majesty  during  the  late  war 
between  Spain  and  France.'  A  copy  of  this  treaty  was  sent  to  Con- 
gress by  President  Washington  on  the  29th  of  iMarch,  179G,  and  an  act 
was  passed  to  carry  it  into  effect.  Though  transmitted  in  the  midst  of 
the  debate  on  'Jay's  treaty,'  it  was  considered  and  acted  on  without 
more  than  a  casual  allusion  to  it  in  that  debate,  and  without  discussion 
on  its  own  merits. 

"The  provisions  of  this  treaty  respecting  limits  and  the  withdrawal 
of  garrisons  had  not  been  carried  out  when  Louisiana  was  acquired  by 
the  United  States,  and  meanwhile  disi)utes  had  arisen  in  consequence 
of  the  arbitral y  order  discontinuing  the  right  to  deposit  and  store 
American  produce  at  Xew  Orleans,  and  reclamations  were  matle  upon 
Spain  for  losses  suffered  from  this  cause,  and  also  for  maritime  spolia- 
tions before  the  peace  of  Amiens." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"The  treaty  of  1795  concluded  with  Spain  during  the  same  Adminis- 
tration (of  Washington),  provided  that  the  vessels  or  effects  of  citizens 
of  either  power  should  not  be  embargoed  or  detained  by  the  other  for 
any  purpose;  that  the  courts  of  justice  should  be  open  alike  to  citizens 
of  each  power;  that  seizures  of  the  persons  of  citizens  of  one  power  by 
the  authorities  of  the  other,  within  its  jurisdiction,  were  to  be  made  and 
prosecuted  under  the  ordinary  forms  of  law,  and  that  the  persons  so 
arrested  were  to  have  the  right  to  employ  sucli  advocates  or  attorneys 
as  they  pleased,  who  were  to  have  the  right  of  access  to  them,  and  of 
being  present  at  all  examinations  and  trials,  all  of  which  engagements 
have  since  been  entered  into  with  other  powers." 

Ihid. 

(b)   FLORIDA   NEGOTIATIOXS   AND  TREATY   OF    1816-20. 

§  IGla. 

The  Dnited  States  having  proposed  in  181G  to  accept  a  cession  of 
Florida  as  a  basis  of  the  release  of  the  claims  held  by  citizens  of  the 
United  States  against  Spain,  off**red  at  the  same  time,  by  way  of  further 
compromise,  to  take  the  Colorado  river  as  the  western  boundary  of  the 
Louisiana  i)urchase,  although  that  purchase  had  been  previously  main- 
tained to  <'xtend  as  far  the  liio  Grande.  The  Spanish  minister,  Onis, 
whose  intrigues  and  turbulence  had  been  a  constant  source  of  dilh(!ulty 
at  Washington,  insisted,  in  the  first  place,  ui)on  the  restoration  to  Spain 
of  that  section  of  what  was  called  West  Florida  whi<'h  in<^luded  Mobile 
and  the.  adjacent  country.  lie  also  presented  as  a  set-otf  loyses  to  Spain 
from  depredations  by  expeditions  which  he  alleged  had  been  fitted  out 
at  New  Orleans  for  tlie  purpose  of  assisting  the  insurgents  in  Texas  and 
Mexico;  and  he  also  claimed  that  vessels  from  the  insurgent  Spanish 
colonies  shouhl  be.  excluded  from  the  i)orts  of  the  United  States.  In 
order  to  meet  the  latter  complaints  so  far  as  they  were  reasonable,  a  stat- 
ute was  passed  in  March  .'i,  ISIO,  which  im])Osed  a  line  often  thousaiMl 
dollars,  forfeiture  of  the  v(!ss(*ls  eniployed,  and  an  impiisonment  not 
exceeding  ten  years,  on  all  persons  engaged  in  fitting  out  vessels  to 
cruise  against  powers  with  which  the  United  States  was  at  peace. 

ScB  iw/ro  ^  402,403. 

277 


§  161a.]  TREATIES.  [CIIAP.  VI. 

The  earlier  correspondence  with  Spain  relative  to  the  cession  of  Flor- 
ida is  given  in  the  Brit,  and  For.  St.  Tap.  lor  1818,  vol.  (i,  G5r>  //".  In 
the  same  volume,  j).  5")5,  is  "iven  the  President's  messaj;e  on  the  same 
subject.     See  also  2  Am.  St.  Pap.  (For.  Kel.),  0LM5. 

The  correspondence  as  to  the  cession  of  Florida  is  more  fully  j^iven  in 
House  Doc.  308,  18th  Cong.,  1st  sess.;  5  Am.  St.  Pap.  (For.  Kel.),  203. 

The  treaty  of  "  amity,  settlement,  and  limits,  between  the  United 
States  and  Uis  Catholic  iMajesty,"  signed  February  22,  1810,  and  sent 
to  the  Senate  on  that  day,  is  given  with  the  correspondence  i)reliminary 
thereto  in  Senate  Doc.  Ml,  loth  Cong.,  2d  sess.;  4  Am.  St.  Pap.,  422.//'. 
This  treaty  provided  for  the  cession  of  Florida  to  the  United  States, 
and  the  reciprocal  renunciation  of  certain  claims  by  the  contracting  par- 
ties, as  adjusted  by  a  joint  commission.     See  comments,  infra. 

Tliis  treaty  was  luit  ratilied  by  the  Spanish  Government  until  Oc- 
tober 24,  1820,  which  was  after  the  time  provided  for  the  exchange  of 
ratifications.  It  was  submitted  again  to  the  Senate  on  February  13, 
1821,  and  ratitied  bv  them  February  19,  1821.  See  5  Am.  St.  Pap. 
(For.  Pel.),  127. 

As  to  the  influences  ou  Spain  temporarily  to  withhold  ratification  from  the 
treaty  of  IHli),  see  Mr.  J.  Q.  Adams,  Sec.  of  State,  to  Mr.  Lowndes,  chair- 
man, House  Committee  on  Foreign  Affairs,  Dec.  21,  1819.  MSS.  Report 
Book.     This  question  is  more  fully  discussed  at  the  close  of  this  section. 

As  to  ratification  of  this  treaty,  see  supra^  §  131.  The  correspondence 
as  to  execution  of  the  treaty  is  in  Ilouse  Doc.  380,  18th  Cong.,  2d  sess. ; 
5  Am.  St.  Pap.,  308. 

The  treaty  as  ffually  ratified  is  given  in  House  Ex.  Doc.  347;  5  Am. 
St.  Pap.  (For.  Pel.),  127.  See  also  House  Doc.  308, 18th  Cong.,  1st  sess. ; 
5  Am.  St.  Pap.  (For.  Pel.),  203;  Senate  Doc.  50,  23d  Cong.,  2d  sess.; 
Senate  Doc.  49,  24th  Cong.,  2d  sess. 

As  to  9th  article,  see  House  Doc.  07  (Treas.  Dept.),  24th  Cong.,  2d 
sess. ;  House  Doc.  14  (Treas.  Dept.),  24th  Cong.,  1st  sess. 

As  to  imi)ediment  to  execution  of  ihe  ninth  article  of  the  treaty  ot 
1819  arising  from  the  question  whether  interest  can  be  allowed  on  the 
amount  awarded  claimants,  see  President's  message  transmitting  report 
of  the  Secretary  of  State,  April  18,  1884,  S.  Ex.  Doc.  158,  48th  Cong., 
1st  sess.     See,  also,  infra^  §  246. 

The  papers  relative  to  the  delivery  of  Florida  to  the  United  States 
in  1821  are  attached  to  the  President's  mes.sage  of  December  5,  1821, 
House  Doc.  324, 17th  Cong.,  1st  sess. ;  4  Am.  St.  Pap.  (For.  Pel.),  740^. 

Under  the  treaty  of  1819  the  commissioner  had  power  to  decide  con- 
clusively upon  the  amount  and  validity  of  claims,  but  not  upon  the  con- 
flicting rights  of  parties  to  the  sums  awarded  by  them. 
Comcgys  v.  Vasso,  1  Pet.,  193. 

"  The  Gth  article  of  the  treaty  contains  the  following  provision :  'The 
inhabitants  of  the  territories  which  His  Catholic  Majesty  cedes  to  the 
United  States  by  this  treaty  shall  be  incorporated  in  the  Union  of  the 
United  States  as  soon  as  may  be  consistent  with  the  principles  of  the 
Federal  Constitution,  and  admitted  to  the  enjoyment  of  the  privileges, 
rights,  and  immunities  of  the  citizens  of  the  United  States.'  This 
treaty  is  the  law  of  the  land,  and  admits  the  inhabitants  of  Florida  to 
the  enjoyment  of  the  privilegea,  rights,  and  immunities  of  the  citizens 
278 


CHAP.  YI.]  SPAIN:    I-LOEIDA    TREATY,    1816-^20.  [§  IGlrt. 

of  the  United  States.  It  is  unnecessary  to  inquire  whether  this  is  not 
their  condition,  independent  of  stipulation.  They  do  not,  however, 
participate  in  political  power ;  they  do  not  share  in  the  Government  till 
Florida  shall  become  a  State.  »  *  *  All  the  laws  which  were  in  force 
in  Florida  while  a  province  of  Spain,  those  excepted  which  were  political 
in  their  character,  which  concerned  the  relations  between  the  people 
and  their  sovereign,  remained  in  force  until  altered  by  the  Government 
of  the  United  States.  Congress  recognized  this  principle  by  using  the 
words  '  laws  of  the  Territory  now  in  force  therein.'  No  laws  could  then 
have  been  in  force  but  those  enacted  by  the  Spanish  Government." 

Marshall,  C.  J.,  American  Insurance  Co.  r.  Canter,  1  Pet.j  542. 

The  8th  article  of  the  treaty  taken  in  connection  with  the  2d  article, 
and  with  the  explanatory  declaration  of  the  King  of  Spain  when  he 
ratified  the  treaty,  does  not  provide  for  grants  made  by  the  Spanish 
authorities  between  the  rivers  Iberville  and  Perdido. 

Foster  v.  Neilson,  2  Pet.,  253;  Pollard's  Lessee  r.  Files,  2  How.,  602. 

By  the  treaty  Spain  did  not  cede  any  territory  to  the  United  States 
west  of  the  river  Perdido.  Acting  upon  the  opinion  that  the  territory 
claimed  by  Spain  west  of  that  stream  was  acquired  from  France  by 
the  treaty  of  1803,  the  legislative  and  executive  departments  of  the 
Government  had,  prior  to  1819,  treated  it  as  a  part  of  the  territory  of 
the  United  States,  and  the  courts  of  the  United  States  will,  in  such 
cases,  follow  the  course  of  those  departments. 

Foster  v.  Neilson,  2  Pet.,  253;  Garcia  v.  Leo,  12  Hid.,  Sl.'i;  Pollard's  Lessee  v. 
Files,  2  How.,  .591  ;  Pollard's  Lessee  v.  Hagan,  3  ihid.,212. 

By  the  8th  article  of  the  treaty  of  1819,  the  lands  theretofore  com- 
pletely granted  by  the  King  were  excepted  out  of  the  grant  to  the 
United  States;  and  the  original  of  that  treaty,  in  the  Spanish  language, 
not  corresponding  with  the  original  in  English,  the  language  of  the 
former,  it  being  plainer  and  clearer  upon  the  point  in  controvers}',  is  to 
be  taken  as  expressing  the  intent  of  the  grantor  as  to  the  lands  granted 
and  reserved. 

U.  S.  V.  Arredondo,  6  Pet..  69L 

The  treaty  of  1819  confirmed  prior  grants  of  lands  in  Florida  by  the 
Spanish  Crown;  though  if  such  grants  were  conditional,  and  the  con- 
dition was  without  good  reason  unperformed  by  the  grantee,  no  title 
vested. 

U.  8.  V.  Percbcman,  7  Pet.,  51;  U.  S.  v.  Clarke,  9  ihid.,  108;  U.  S.  i-.  Mills,  12 
ibid.,  215.     See  supra,  ^^  iff- 

Tiie  validity  of  concessions  of  lands,  conditional  as  well  as  absolute, 
made  by  the  authorities  of  Spain  in  East  Florida,  is  expressly  recognized 
in  the  treaty  of  cession. 

U.  S   V.  Clarke,  9  Pot.,  1C8. 

279 


§  IGlrt.]  TREATIES.  fcHAF    VI. 

By  tliL-  treaty  of  1819  the  United  States  aequired  no  lands  in  I'lorida 
to  which  any  ptrson  had  la\Yiully  obtained  such  a  right  l>y  a  i»erfect  or 
inchoate  tith%  that  this  court  could  consider  it  as  propeily  under  the 
second  article,  or  which  had,  accordin;^  to  the  stipulations  of  the  eighth, 
been  granied  l)y  the  lawlul  authoiities  of  the  King;  which  words, 
grants,  or  concessions  were  to  be  construed  in  their  broadest  sense,  so 
as  to  comprehend  all  lawlul  acts  which  oi>erated  to  transfer  a  right  of 
property,  perfect  or  imperfect. 

Mitclu'lr.  U.  S.,  9IVh,7:31. 

Unlocated  an<l  indelinite  grants  by  the  Ri»anish  authoiities  were*  void 
and  not  protected  by  the  treaty  of  ISIO. 

O'llara  r.  U.  S.,  V>  Pet.,  '27;');  U.  S.  r.  Dc-lospiue,  Hid., 'MO;  U.  S.  r.  Miraiida,  10 
iliid.,  Ifjo. 

Under  article  9  of  the  treaty  of  1819,  providing  for  the  restoration  of 
l)roperty  lescued  from  i)irates  and  robbers  on  the  high  seas,  it  is  neces- 
sary to  show  (1)  that  what  is  claimed  falls  within  the  description  of 
vessel  or  merchandise;  (2)  that  it  has  been  rescued  on  the  high  seas 
from  ])irates  and  robbers  ;  (3)  that  the  asserted  proprietors  are  the  true 
proprietors,  and  have  established  their  title  by  competent  ]>roof.  It 
was  further  held  that  native  Africans  unlawfully  kidnapped  were  not 
t'  merchandise." 

U.  S.  V.  The  Amistad,  15  Pet.,  518.     See  prior  statement  of  tliis  case  in  this 
section. 

All  the  grants  of  land  made  by  the  lawful  authorities  of  the  King  of 
Spain  before  the  24th  of  January,  1818,  were  by  the  treaty  ratified  and 
confirmed  to  the  owners  of  the  lands.  Such  is  the  construction  given 
to  the  eighth  article  by  this  court  in  Arredondo's  case,  C  Pet.,  706, 
and  in  Percheman's  case,  7  ibid.,  51 ;  that  is,  imperfect  titles  were 
equally  binding  on  this  Government  after  the  cession  as  they  bad  been 
on  the  Spanish  Government  before. 

U.  S.  r.  Clarke  and  Atkinson,  16  Tet.,  231,  232. 

It  is  the  settled  doctrine  of  the  judicial  department  of  the  Govern- 
ment that  the  treaty  of  1819  ceded  no  territory  west  of  the  Perdido 
Kiver. 

Pollard  r.  Files,  2  How.,  591. 

It  cannot  be  admitted  that  the  King  of  Spain  could,  by  treaty  or 
otherwise,  impart  to  the  United  States  any  of  his  royal  i)rerogatives; 
and  much  less  can  it  be  admitted  that  they  have  capacity  to  receive  or 
power  to  exercise  them.  Every  nation  acquiring  territory,  by  treaty 
or  otherwise,  must  hold  it  subject  to  the  laws  of  its  own  Government, 
and  not  according  to  those  of  the  Government  ceding  it. 

Pollard  V.  Hagan,  3  How.,  225;  supra,  $$  Aff. 
280 


CHAP.  TI.]  SPAlX:    FLOEIDA    TREATY,  1816-'20.  [§  IGlrt. 

An  equitable  Spaiiisli  title,  Bot  confirmed  by  the  Uuited  States,  to 
ceded  lands,  cannot  prevail  against  a  legal  titie  acqnii'ed  from  the 
TJDited  States. 

U.  S.  r.  King,  3How.,  773. 

The  treaty  of  1819  contains  the  following  stipulation  :  "The  Uuited 
States  shall  cause  satisfaction  to  be  made  for  the  injuries,  if  any,  which 
by  process  of  law  shall  be  established  to  have  been  suffered  by  the  Span- 
ish ofiicers  and  individual  Spanish  inhabitants  by  the  late  operations 
of  the  American  Army  in  Florida."  The  treaty  created  no  tribunal  by 
which  these  damages  were  to  be  adjusted,  and  gives  no  authority  to  any 
court  of  justice  to  inquire  into  or  adjust  the  amount  which  the  United 
States  were  to  pay  to  the  respective  parties  who  had  suffered  damage 
from  the  causes  mentioned  in  the  treaty.  It  rested  with  Congress  to 
provide  one,  according  to  the  treaty  stipulation.  Undoubtedly  Con- 
gress was  bound  to  provide  such  a  tribunal  as  the  treaty  described. 
But  if  they  failed  to  fulfill  that  promise,  it  is  a  question  between  the 
United  States  and  Spain. 

U.  S.  V.  Ferreira,  13  How.,  45,  46. 

Where  one  of  the  parties  to  a  treaty,  at  the  time  of  its  ratification, 
annexes  a  written  declaration  explaining  ambiguous  language  in  the 
instrument,  or  adding  a  new  and  distinct  stipulation,  and  the  treaty  is 
afterward  ratified  by  the  other  party  with  the  declaration  attached  to 
it,  and  the  ratification  duly  exchanged,  such  distinct  stipulation  or  ex- 
planation being  duly  approved  by  the  constitutional  authorities  of  each 
ratifying  power,  the  declaration  thus  annexed  is  a  part  of  the  treaty, 
and  as  binding  and  obligatory  as  if  it  were  inserted  in  the  body  of  the 
instrument.  Hence  the  grant  of  lands  in  Florida  by  the  King  of  Spain 
to  the  Duke  of  Alagon,  whether  it  takes  date  from  the  royal  order  of 
December  17,  1817,  or  from  the  grant  of  February  G,  1818,  is  annulled 
by  the  treaty  between  the  United  States  and  the  King  of  Spain,  of  1819, 
by  virtue  of  the  declaration  to  that  effect  made  by  the  President  of  the 
United  States  on  presenting  the  treaty  for  an  exchange  of  ratifications, 
and  assented  to  by  the  King  in  writing,  and  again  ratified  by  the  Senate 
of  the  United  States.  Whether  the  King  of  Spain  had  power  to  annul 
a  grant  is  a  question  which  was  foreclosed  in  every  judicial  tribunal  of 
the  United  States  by  the  action  of  the  President  and  Senate  treating 
with  him  as  having  that  power.  Kor  will  the  court  review  the  action 
of  the  executive  in  this  respect,  it  being  impossible  for  the  Executive 
Department  of  the  Government  to  conduct  our  foreign  relations  with 
any  advantage  to  the  country,  and  fulfill  the  duties  which  the  Constitu- 
tion has  imposed  upon  it,  if  every  court  in  the  country  was  authorized 
to  in(iuire  and  decide  whether  the  person  who  ratified  the  treaty  on 
behalf  of  a  foreign  nation  had  the  power,  by  its  constitution  and  laws, 
to  make  the  engagements  into  which  lie  entered. 
Doc  t;  Brmlen,  1(5  How.,  G3r». 

281 


§  161«.]  TREATIES.  [chap.  VI. 

The  claims  of  American  citizens  against  Si)ain,  ibr  which  by  l«lio 
treaty  of  1819  the  United  States  undertook  to  make  satisCaction  to  an 
amount  not  exceeding  8r),()()(),()00,  were  such  claims  as,  at  tlie  <hUe  of 
the  convention,  were  unliquidated  and  statements  of  which  Ijad  been 
presented  to  the  Department  of  State  or  to  the  minister  of  the  United 
States.  The  convention,  as  signed  22d  February,  181!),  subject  to  rati- 
fication within  six  months,  though  it  was  not  ratilicd  within  the  time 
stipulated,  was  never  abandoned,  though  some  expressions  in  tlie  noti- 
lication  of  August  21,  1810,  by  the  United  States  to  Spain  (notifying  to 
tluit  Government  that  after  the  next  day, ''as  the  ratifications  of  the 
convention  will  not  have  been  exchanged,  all  the  claims  and  pretensions 
of  the  United  States  will  stand  in  the  same  situation  as  if  that  conveu- 
tion  had  never  been  made")  indicated  that  the  United  States  might  be 
induced  to  carry  it  into  effect.  The  notification  did  not,  by  the  non-rat- 
ification within  the  six  months,  make  revocable  the  power  which  citi- 
zens of  the  United  States,  by  filing  their  claims  with  it,  had  given  their 
Government  to  make  reclamations  against  Spain  in  their  behalf. 
Meade  v.  Uuited  States, 9  Wall.,  691. 

The  act  of  Congress  of  June  22,  18G0,  had  for  its  object  the  final  ad- 
justment of  land  claims  and  to  validate  grants  made  by  the  Spanish 
Government  to  bona  fide  grantees  of  land  within  the  disputed  territory 
while  that  Government  remained  in  possession  of  the  territory. 
U.  S.  V.  Lyude,  1 1  Wall. ,  G32. 

A  Spanish  grant  made  December  2,  1820,  was  made  in  violation  of 
the  8th  article  of  the  treaty  of  1810. 

2  Op.,  191,  Wirt,  1829. 

Certain  slaves  were  shipped  by  their  Spanish  owners  from  Havana 
toPensacolain  an  American  vessel  in  violation  of  the  laws  of  the  United 
States.  The  vessel  was  captured  by  the  American  military  force  then 
occupying  Fort  Barrancas.  Afterward,  while  proceeding  to  adjudica- 
tion, the  slaves  and  vessel  were  seized  by  a  revenue  vessel  and  carried 
into  the  port  of  Mobile,  The  vessel  and  cargo  were  condemned,  but 
restitution  of  the  slaves  was  awarded,  because  the  original  capture  was 
not  made  by  a  ''  commissioned  vessel  of  the  Uuited  States."  The  orig- 
inal capture  being  lawful,  and  the  slaves  though  restored  being  on 
board  unlawfully,  the  Spanish  owners  have  no  claim  as  for  an  -'injury" 
under  the  treaty  with  Spain  of  1810. 
2  0p.,rJ8,  Berrien,  18-iO. 

The  Department  of  State  was  made  the  depository,  by  stipulation, 
of  the  records  and  papers  referred  to  in  article  11  of  the  treaty  with 
Spain  of  1810,  and  they  must  not  be  delivered  up  to  the  claimants; 
and  any  law  of  Congress  that  shall  authorize  or  require  their  delivery 
will  be  a  violation  of  that  treaty. 

2  Op.,ol5,Tanoy,  1832. 

282 


CHAP.  VI.]  SPAIX:    FLORIDA    TRExiTY,  181G-'20.  [^^  l61a. 

The  United  States  are  boniid,  by  tlie  treaty  -with  Spain  of  the  22d 
of  February,  1819,  to  pay  the  Spanish  inhabitants  of  Florida  for  shives 
carried  away  or  killed  by  troops  of  the  United  States  prior  to  that 
treaty;  and  remuneration  should  be  made  for  the  loss  of  services  of 
such  slaves  as  have  been  restored. 

3  Op.,  391,  Grundy,  1838. 

The  extraordinary  expenses  of  a  party,  incurred  in  living  at  Saint 
Mary's,  whither  he  retired  after  the  destruction  of  his  property  in  Flor- 
ida, are  matters  too  remotely  consequential  to  be  the  proper  subject  of 
damages  under  article  9  of  the  treaty  of  1819. 

6  Op.,  530,  Gushing,  1854. 

The  power  of  the  Secretary  of  the  Treasury  and  the  necessary  proceedings  to 

establish  claims  under  the  ninth  article  of  the  treaty  of  1819  is  considered 

at  length  iu  6  Op.,  533,  Gushing,  1851. 

Under  the  treaty  of  1819  and  the  act  of  1829  the  apprehension  and 
delivery  of  a  seaman,  who  is  alleged  to  be  a  deserter  from  a  Spanish 
ship,  is  a  judicial  duty,  and  the  State  Department  cannot  change  what 
a  judge  has  done. 

9  Op.,  96,  Black,  1857.     ■ 

The  action  of  the  United  States  in  driving  buccaneers  from  Amelia 
Island,  and  in  pursuing  and  punishing  hostile  Indians,  iu  Florida,  ie 
elsewhere  detailed. 

Snpra,  §§  50a,  50&;  infra,  ^  348rt. 

The  defiant  patriotism  of  Mr.  Adams  was  never  more  conspicuously 
shown  than  during  his  negotiations  with  Spain  in  resi)ect  to  the  ])ur- 
chase  of  the  Floridas,  and  in  no  part  of  his  public  life  were  his  faults  of 
temper,  and  his  antagonisui  to  any  one  by  whom  his  personal  ambition 
was  thwarted,  less  manifest.  In  Congress,  the  policy  of  the  Administra- 
tion in  respect  to  the  Floridas  was  at  first  looked  ujion  coldly  by  the 
rising  statesmen,  among  wbom  Mr.  Clay  took  the  lead,  whose  primary 
object  was  early  recognition  of  South  American  indejjendence.  Florida 
would  be  valuable,  but  it  wouhl,  in  any  view,  be  one  of  the  prizes  of  a 
war  with  Spain  which  they  ex])ected  as  a  necessary  and  not  undesira- 
ble consequence  of  the  interposition  in  South  America  they  proposed. 
In  support  of  the  Administration,  in  delaying  the  recognition  of  the 
South  American  insurgents,  were  rallied  several  powerf'tl  agencies  :  (1) 
The  commercial  interests  of  the  North,  whicii  deprecated  a  war  which 
would  expose  their  ships  to  Spanish  privateers;  (2)  the  Southeastern 
Atlantic  States,  of  whom  Mr.  Forsyth  was  the  leading  spokesman  in  Con- 
gress, who  desired  to  be  relieved  from  border  collisions  by  i>urcliasing 
the  Floridas  at  once;  and  (3), General  Jackson,  who  here  displayed  that 
rare  sagacity  which  afterwards  so  sitiguhirly  came  to  his  iiid  in  mastering 
not  only  the  o])j)Ositioii  of  others,  but  the  impnise  of  his  own  |)assions. 
His  personal  instincts  were  for  a  Spanish  wai,  andso  his  jirivate  unpub- 
lished letters,  on  tile  in  tluj  i)epaitment  of  State,  show.  He  burned 
with  lesentment  at  what  he  considered  Spanish  atrocities  whi<-h  he 
thought  Were  all  the  nioie  inj'urions  from  the  feebleness  of  the  ])ower  by 
which  they  wei'c  upheld.     He  was  ready  to  seize  and  occupy  Pensa- 

283 


§  1G1«.]  TREATIES.  [chap.  VI. 

cola  and  other  jiosts  wliicb  lie  tlioiifjlit  liarbored  honh  r  Iiuliiiiis  or  hos- 
tile raideis  {Siipr<(,  §;")()/;.)  But  while  thus  niiikinji'  the  United  ^States 
as  uneonilbrtable  a  nei.i;iilK)r  to  Spain  as  lie  eouhl,  nndenieath  all  his 
corresi)onden('e  ^vith  the  iSpanisli  authorities,  larked  the  sufifiestion, 
"how  nnieh  better  lor  yon  to  sell  out."  And  pniehasirii;  he  niji^^ed  on 
the  Adniinislration  as  far  wiser,  surer,  and  cheaper  than  conqnerinjj:. 

.Mr.  Adams's  diary  explains  the  annoyinp:  vicissitudes  to  which  the 
iicijotiation  was  subjected.  It  is  due  to  him  to  say  that  in  no  portion 
of  his  diplomatic  correspondence  by  which  the  archives  of  the  Depart- 
ment of  State  is  enriched,  did  he  display  more  vipor  and  at  the  same 
time  less  impatience  and  harshness  of  expression,  than  in  the  remark- 
able i)a])ers  which  issued  from  him  durinj;'  this  ])rotracted  ne<;oliation 
with  Spain.  Of  Onis,  the  S])anish  minister  at  Washiniiton,  notice  has 
been  already  incidentally  taken  in  this  work.  It  is  sutlicicnt  here  to 
i>ay  that  lookiuii'  upon  the  United  States  with  a  jealousy  and  dislike 
which  he  was  so  litile  able  to  rcj)ress  that  for  some  time  his  recejition 
by  the  Government  was  refused,  his  diplonuUic  subtlety  made  him, 
when  he  entered  at  last  on  the  nei;'otiation,  a  lit  instrinneut  of  the  ])ro- 
crastination  his  instructions  advised.  Wlu'U,  however,  cession  of  some 
sort  bceanie  at  last  the  only  alternative  to  war,  and  when  it  was  clear 
that  Onis's  past  conduct  and  ])resent  temi)er  ])recluded  him  from  success- 
fully concluding'  the  neji,otiation,  tlio  Fi'ench  minister,  ])e  Neuville, 
whose  ta(;t  and  kindliness  were  recognized  by  both  interests,  was  called 
upon  to  intervene.  A  compromise  was  through  tliis  agency  etTected. 
The  Louisiana  boundary  was  settled  by  following-  the  Sabine,  lied,  and 
Arkansas  Kivers  to  the  south,  as  far  westward  as  the  4LM  degree  north 
latitude,  and  ])ursuing  that  degree  to  the  Pacitic  Ocean.  The  spolia- 
tions claims  held  by  the  United  States  against  Si)ain  were  renounced, 
and  the  United  States  undertook  "to  nmke  satisfaction  for  the  same  to 
an  amount  not  exceeding  five  millions  of  dollars."  J)y  this  treaty,  which 
was  at  once  uuanimously  ratitied  by  the  Senate,  the  Floridas  were  snp- 
jiosed  to  be  secured,  as  well  as  the  disputed  soutliwest  boundary  settled. 
Congress,  having  no  doubt  of  the  assent  of  Spain,  i)assed,  just  on  the 
eve  of  its  adjourn  meut,  acts  authorizing  the  establishing  of  local  govern- 
meuts  in  the  territory  so  won. 

But  the  assent  of  Spain  was  withheld,  as  Mr.  Adams,  with  rising  ira- 
jiatience  and  indignation,  narrates  in  his  diary  and  jirotests  against  in  his 
coriespondence.  This  refusal  to  accede  to  the  treaty  was  caused  in  part 
by  the  dilatory  temper  of  Cevallos,  the  Spanish  i)rime  minister,  who 
was  swayed  to  and  tro  by  two  contlicting  policies — that  of  relieving  his 
governmeut  from  the  urgency  of  the  spoliation  claiius,  ami  that  of  na- 
tional pride,  swelled  with  resentment  at  the  menacing  tone  assumed  by 
the  United  States  uiilitary  authorities  on  the  Florida  border,  and  at  the 
avowed  sympathy  of  a  large  jiart  of  the  ])opulation  of  the  United 
States  with  the  insurgents  in  the  Spanish  South  American  colonies. 
Nor  was  the  dissatisfaction  with  the  treaty,  when  its  ])rovisions  were 
fully  understood  bj'  the  i)ublic.  limited  to  Spain.  It  is  now  well  known 
that  ^Ir.  ^\dams  maintained  that  the  l*io  Oraiide  was  the  true  south- 
western bouudaiy  of  the  United  States,  and  that  he  was  overruled  by 
a  majority  of  the  Cabinet,  who  concurred  with  IMr.  Crawford  in  holding 
that  Florida  was  so  essential  to  the  Southeastern  States  that  the  move- 
ment to  obtain  it  should  not  be  clogged  by  debatable  demands  for  ter- 
ritory to  the  south^^est.  But  even  then  there  were  statesmen,  among 
whom  was  Mr.  Clay,  who,  with  the  interests  of  the  Mississiopi  Valley 
at  heart,  held  that  Texas  was  not  only  far  more  valuable  and  important 

284 


CHAP.  VI.]  SPAIN:    FLORIDA    TREATY,    1816-'20.  [§  161«. 

to  the  United  States  tban  rioriila,  but  that  Texas  already  rigrbtfully 
beIou«ied  to  tbe  Uuited  States.  Wbetber  General  Jackson,  wbo  was 
api)ealed  to  by  'Sir.  Adams  for  supjiort  on  this  issue,  agreed  witb  Mr. 
Adams  as  to  making  the  Rio  Grande  ibe  boundary,  bas  beeu  much  dis- 
puted. Many  years  afterwards,  when  tbe  annexation  of  Texas  was  op- 
posed by  JNIr.  Adams  as  an  undue  extension  of  slave  territory,  be  pro- 
duced bis  diary  to  sbow  tbat  General  Jackson  bad  advised  its  surrender 
by  President  Monroe.  Tbis  was  emphatically  denied  by  General  Jack- 
son. Tbe  manuscript  corres])ondence  on  file  in  tbe  Department  of  State 
leads  us  to  an  intermediate  position.  General  Jackson,  when  tbe  Flor- 
ida treaty  was  ur.der  consideration,  approved  of  it  as  affording  a  settle- 
ment greatly  to  be  preferred  to  a  continuance  of  tbe  border  and  Indian 
warfaie  wbicb  tbeu  existed  on  tbe  Florida  lines,  or  to  a  war  witb  Spam 
wbicb  might  be  of  indefinite  duration  and  cost;  and  in  view  of  what  ap- 
peared -0  him  the  overwhelming  importance  of  tbis  issue  he  overlooked 
tbat  of  tbe  southwestern  boundary.  There  is  nothing  to  show  tbat  tbe 
nature  of  our  title  to  Texas,  surrendered  by  tbe  Florida  treaty,  was  at 
that  time  brought  to  bis  notice.  To  President  Monroe,  however,  tbe 
strength  of  this  title  was  well  known,  and  his  voluminous  un])ublisbed 
correspondence  shows  with  what  conscientious  and  patient  care  it  was 
considered  by  him.  Tbe  ultimate  annexation  of  Texas  to  the  United 
States  he  seemed  to  consider  as  inevitable,  and  be  declared  over  and  over 
again  that  he  would  not  permit  it  to  be  held  by  any  Euroi)ean  power 
but  Spain.  But  the  Missouri  question  was  then  looming  i)ortentously 
before  his  anxious  eyes.  He  saw  a  great  party  in  the  North  which  was 
opposed  to  any  extension  of  slave  territory;  he  himself  was  no  enthu- 
siastic defender  of  slavery.  If  Texas  bad  then  been  won,  it  could  only 
have  been  brought  into  ])roductive  occupancy  by  slavery,  affording  a 
new  stimulus  to  a  surrei)titious  slave  trade.  In  the  course  of  time  tbe 
dominant  race  of  tbe  North  would  flow  down  into  it  and  take  possession 
of  it  and  occupy  it,  but  that  time  had  not  yet  come.  It  was  better  not 
to  i^ress  a  claim  now  for  a  territory  for  which  we  were  not  quite  ready, 
when  the  effect  might  be  to  impede  our  acquisition  of  a  teiritory  wbicb 
we  needed  at  on(;e.  It  is  remarkable  that  this  view  of  the  acquisition 
of  Texas  was  not  shared  by  Mr.  Adams,  in  whose  mind  tbe  dangers  of 
the  extension  of  slavery  had  not  yet  become  such  as  to  influence  his 
l)olitical  course.  He  not  only  urged  tbe  assertion  of  our  title  to  Texas, 
necessarily  then  a  slave  State,  but  he  assented  to  the  Missouri  compro- 
mise, which  gave  the  Southwest  to  slavery.  The  issue,  in  fact,  was 
fraught  witb  consequences  which  Mr.  Monroe  was  the  only  leading 
statesman  of  bis  day  to  foresee.  Texas,  which  would  have  then  made 
six  States  of  the  size  of  Pennsylvania,  would  have  been  brought  into 
tbe  Union,  and  witb  the  jiopulation  which  would  soon  have  poured  into 
its  fertile  plains,  might  have  rivaled  tbe  Northwest  as  a  tield  f()ri)ioncer 
settlement.  Whatever  might  have  been  theefl'ect  of  tbis  on  the  future, 
in  tbe  final  struggle  witb  slavery,  there  is  no  question  tbat  tbe  intro- 
duction of  such  an  element  of  contention  at  tbat  time  would  have  been 
to  ex])Ose  the  work  of  maintenance  of  the  Union,  which  Mr.  Monroe 
considered  to  be  his  especial  charge,  to  perils  be  was  unwilling  to  en- 
counter. 

When  tbe  treaty  for  the  i)urcha<e  of  I'lorida  liad  been  ratified  by  the 
Senure,  Mr.  Forsyth  was  seiiLwitb  it  to  Spain,  and  almost  at  tbe  same 
tinu'  Oiiis,  whose  relations  to  the  I'Uircd  States  had  nexcr,  as  h;is  been 
seen,  been  <;ordial,  returned  to  Join  the  ministry  at  Madrid.  Feidi- 
nand's  change  of  attitude  may  be  explained  by  this  change  in  his  ad- 

2S3 


§  161a.]  TREATIES.  [chap.  VI. 

visers.  He  had  coiKseiited  to  the  Florida  nopjotiation  under  the  im- 
pression that  whiU'  it  was  pending;  South  Auu-iiean  indei)endi-uce  wouUl 
not  be  rtcoyiiized.  J>ut  Onis  was  convinced  lliat  when  IHorida  was 
ceded  South  American  imU-pendence  woidd  be  recof^nized;  and  this 
conviction  was  easily  commncicated  to  both  Ivin;::  antl  Cortes.  Even 
the  concession  of  Texas,  niKbily  libcial  as  it  was,  diil  not  reUeve  Si)an- 
ish  suspicions,  since  a  liiil)nstcrin^-  invasion  of  Texas  by  adventurers 
who,  thonjih  acting-  in  contemi)t  of  Federal  authorities,  yet  came  from 
the  United  States,  left  the  impression  that  after  Florida  was  obtained 
by  treaty,  Texas  would  have  to  succumb.  IJad  the  Si)anish  Goveru- 
mVnt,  no  umtter  for  what  motives,  ]uon)ptly  disavowed  the  treaty  as 
made  in  excess  of  instructions,  the  United  States  wonUl  have  had  no 
firound  for  substantial  complaint,  no  matter  what  mi^ht  have  been  the 
reasons  for  such  disavowal.  But  this  the  Spanish  (jovernnuMit  did  not 
do.  It  is  a  ])iincii)le  of  dii)louKU'y  that  such  disavowal  should  be 
l)romi)t ;  nocomphiint  came  from  Spain  until  seven  montiis  had  passed. 
The  announcement,  alter  that  i)criod,  that  Si)ain  meant  to  repudiate  a 
baiiiain  which  the  United  States  had  tala'U  every  intermediate  step  to 
fnltill,  naturally  awakened  in  the  minds  of  ^Ir.  iMonroe  antl  of  his  Cab- 
inet indifiuation  as  well  as  surprise.  At  lirst,  as  we  are  told  in  Mr. 
Adams'  conteniporaneous  diary,  the  im])ulse  was  to  occupy  Florida, 
not  merely  on  treaty  jirounds,  but  on  giound  of  necessity,  to  repel  the 
raids  of  Indians  and  Spanish  marauders  which  had  their  base  in  Flor- 
ida. Spain,  it  was  aryued,  has  neither  the  power  nor  the  will  to  keep 
Florida  from  beinji-  the  starting  ground  for  these  outrages;  it  is  neces- 
sary that  the  United  States  take  the  matter  in  its  own  hands.  So  urged 
Mr!  Crawford,  whose  State  (Georgia)  was  peculiarly  exposed  to  these 
incursions;  so  at  first  felt  Mr.  Adams,  incensed  that  the  treaty  with 
which  his  fame  was  identilied  should  be  rei>udiated.  Mr.  I\I  on  roe  at 
the  time  yielded  to  this  imi)ulse,  but  alter  consideration  he  concluded 
to  recommenil,  not  immediate  occui)ation,  but  occupation  in  the  future, 
dependent  ou  the  action  of  Spain.  The  Spanish  Government,  on  receipt 
of  this  message,  felt  that  some  excuse  was  due  for  its  delay,  and  it 
found  it  in  the  allegation  that  an  alteration  had  been  made  in  the  treaty 
after  .signature.  But  this  allegation  was  readily  disproved,  its  sole  basis 
being  that,  after  signature,  Mr.  Onis,  being  shown  an  ambiguous  phrase 
in  the  treaty  as  to  certain  Florida  grants,  answered  that  the  phrase 
was  inadvertent,  a  matter  not  of  change,  but  of  subsequent  explana- 
tion and  construction. 

When  the  message  advising  a  delay  in  action  came  before  the  Com- 
mittee on  Foreign  lielatious  in  the  House  of  Kepresentatives,  that  com- 
mittee, taking  ground  in  advance  of  t'he  President,  reported  a  bill 
making  it  incumbent  ou  the  President  to  take  immediate  possession  of 
Florida.  But  in  the  mean  time  it  was  found  that  Great  Britain  ami 
France  looked  with  anxiety  on  Si)ain's  dallying  with  her  international 
obligations  to  the  extent  she  ])roposed,  and  at  the  consequences  of  a  war 
between  Spain  and  the  United  States,  which  might  result  in  giving  to 
the  United  States  Cuba  and  Texas.  They  remonstrated  with  Spain, 
and  the  result  was  a  new  minister  from  Spain,  General  Yives,  who  ar- 
rived in  "Washington  early  in  April,  1S20.  But  Vives  had  hardly  entered 
on  his  duties  belbre  news  arrived  from  Spain  that  by  a  revolutionary 
movement  the  i)rior  reactionary  ministry  had  been  overthrown,  and  the 
liberal  constitution,  adopted  on  the  ex|  ulsiou  of  the  Bonapartes,  had 
been  restored.  Vives,  whose  instructions  by  Ferdinand  had  been  merely 
to  temporize  and  delay  negotiations,  found  himself  in  this  way  virtually 

28G 


CHAP.  A'l.J  SPAIN:    FLORIDA    TKEATY,    1816-'20.  [§  IGltt. 

without  auy  instructions  at  all;  and  Mr,  Monroe,  unwilling  to  take  ad- 
vantage of  such  a  moment  of  paralysis,  advised  such  a  modification  of 
the  committee's  resolution  as  would  enable  him  to  reserve  immediate 
action.  Yiv^s,  informed  by  the  Department  of  the  importance  of  early 
action,  pledged  himself,  in  May,  ISUO,  to  obtain  a  prompt  decision  from 
his  Government.  This  being  understood,  the  House  suspended  pro- 
ceedings, and  Congress  adjourned  on  May  15,  to  meet  on  November  13. 
In  October  the  Spanish  Cortes  met,  and  the  injustice  as  well  as  the 
danger  of  lurther  procrastination  having. become  evident,  the  final  rati- 
fication of  the  treaty  was  agreed  to.  Five  months  elapsed,  however, 
such  was  the  slowness  of  communication  in  those  days,  before  the  treat}' 
reached  Washington,  The  period  was  one  suitable  for  the  acceptance 
of  a  policy  of  peace.  The  unanimous  re-election  of  the  Presicleut  had 
just  been  officially  announced.  The  settlement  of  the  Missouri  question, 
by  which  the  country  had  been  convulsed,  was  at  least,  by  the  proposi- 
tion by  Mr,  Clay  of  a  joint  committee  of  compromise,  made  probable. 
It  was  necessary  tore-submit  the  treaty  to  the  Senate,  as,  by  nonratifica 
tion  withm  the  time  limited,  it  had  expired.  But  it  was  approved  anew 
by  a  large  m;\jority,  and  the  House  being  asked  on  February  22, 1821,  to 
give  its  assent  to  ihe  necessarj'  legislation,  promptly  responded.  Mr. 
Monroe,  true  both  to  his  nature  and  his  public  statements,  continued, 
notwithstanding  both  the  provocation  and  the  opportunity,  to  maintain 
the  same  policy  of  patience  towards  Spain  which  he  had  previously  ex- 
hibited. The  House,  notwithstanding  its  more  ardent  action  of  a  i)rior 
session,  now  contented  itself  with  passing  a  resolution  to  the  eflect  that 
it  would  su])i)ort  the  Administration  should  the  latter  see  fit  to  recognize 
the  independence  of  the  South  American  States ;  and  Mr.  Monroe  sent 
a  message  in  reply,  in  which  he  stated  that  while  he  had  recognized  the 
insurgents  as  belligerents,  he  considered  it  best  to  delay  still  further  the 
recognition  of  their  independent  sovereignty.  (See  on  this  topic  further, 
svpra^  §  70.)  But  in  point  of  fact,  Mr.  Monroe's  course,  while  maintain- 
ing unwaveringly  the  strict  principles  of  neutrality  of  which  the  United 
States  had  been  the  first  consistent  exponent,  gave  the  insurgents  as 
much  sui)port  as  they  could  rationally,  consistently  with  international 
la\v,haveasked.  Their  shijjs  were  invested  with  belligerentrights;  S])ain 
was  informed  she  would  not  be  permitted  to  treat  them  as  pirates,  and 
they  were  allowed,  under  the  usual  restrictions,  to  purchase  contraband 
of  war.  But  it  is  due  to  i\Ir.  Monroe  to  say  tliat  his  non -recognition  ol 
South  American  independence  was  not  one  of  the  conditions  of  his  pur- 
chase of  Florida,  nor  did  the  consummation  of  that  purchase  at  all  alter 
the  course  he  had  determined  on  of  delay  in  such  recognition  until  the 
fact  of  independency  had  been  substantively  established. 

As  to  tbe  action  of  tlio  courts  under  Spanish  yniiits  in  Florida  under  the  treaty 
of  1819,  see  Foster  v.  Neilson,  2  Pet.,  25:?;  Delassus  v.  U.  S.,  9  Pet.,  117; 
U.  S.  V.  Arrcdondo,  G  Pet.,  C91 ;  U.  S.  v.  Percbeinan,  7  Pet.,  51;  and  cases 
cited  supra,  $$  4,  5^,  aud  also  in  prior  pages  of  this  section. 

As  to  duty  of  ratification  under  such  circumstances  see  supra,  ^  131. 

The  i)rotocol  of  January  1,  1877,  between  jNIr.  Cushing,  minister  to 
Spain,  and  Mr.  Calderon  y  Collantes,  Spanish  minister  of  state,  as  to 
modes  of  criminal  procedure  in  Spain  and  the  United  States,  is  gi\(Mi 
infro^  §  2'M);  see  also  supra,  §§  l.'Ji,  131a. 

House  Doc.  'j<»,  22d  Cong.,  2d  sess,,  gives  "extracts  from  Solor/,;in()"s 
I'olitica  Indiana,  a  work  of  approved  authoiity  in  all  Spanish  Irilm- 
nals,  and  the  most  celebrated  of  the  Spanish  coinmenlarics  on  the  laws 

^67 


^N  IGlft.]  TREATIES.  [CHAP.  VI. 

of  the  Indies.    The  trauslatious  coDipared  and  certified  by  the  transla- 
tor of  to reijin  hinmiases  in  the  Department  of  State." 

As  to  treaty  ol  tSt.  lldctonso,  see  L*  Am.  St.  Pap.  (For.  Eel.),  027,//". 

Questions  eoncernin^  intervention  in  Cuba  are  discussed  sv2)ra,  §  GO. 

As  to  Spanish  spoliations,  see  infra,  §  2l*S. 

"  The  as'S'rei^sions  on  the  eommerce  of  tlie  United  States  in  the  wars 
between  Spain  and  iier  revolted  colonies  continued  to  give  lise  to  claims 
auaiiist  that  jjower.  The  n;Unre  of  these  claims  is  <lescribed  by  JMr. 
A'an  Ibiren  in  his  instructions  of  C  ctober  2,  lb21>,  to  Mr.  Van  Ness,  the 
minister  to  ^lachid.  lie  instructed  Van  Ness  to  secure  either  the  i)ay- 
uieut  of  a  gross  sum  in  lull  satisfaction,  or  the  appointment  of  a  mixed 
commission.  The  negotiations  extended  through  a  jteriod  of  between 
three  and  lour  years.  At  first  Si)aiu  declined  to  recognize  liability,  but 
after  the  death  of  Ferdinand  it  was  agreed  that  Spain  was  liable,  and 
that  the  United  States  should  receive  in  full  satisfaction  twelve  millions 
of  rials  vellon,  in  inscriptions,  the  interest  at  live  per  cent.,  to  be  pay- 
able in  Paris.  This  agreement  was  carried  out  in  the  convention  of 
1834. 

"When  the  bill  to  carry  this  treaty  into  effect  came  before  the  House, 
Mr.  Cushiug  said  'that  he  desired  to  avail  himself  of  this  occasion  to 
express  his  strong  sense  of  the  justice  and  honor  exhibited  by  the  Gov- 
ernment of  Spain  in  the  treaty  of  which  thi:>  bill  was  the  consumnni- 
tion.  In  the  midst  of  national  calamities,  which  she  met  with  her 
characteristic  fortitude,  with  a  deadly  civil  war  raging  in  her  bosom, 
and  weighed  down  with  hnancial  embarrassments,  Spain  has  acknowl- 
edged and  satisfied  the  claims  of  our  citizens,  in  a  spirit  of  manly 
promptitude  and  frankness,  strikingly  contrasted  with  the  conduct  of 
some  other  European  powers  in  similar  matters.'  The  act  was  i»assed 
June  7,  183G,  and  its  operation  was  afterwards  extended  for  a  limited 
time. 

"The  long  continuance  of  the  internal  condition  described  by  Mr. 
Cushing  caused  a  suspension  of  i)ayments  due  under  this  treaty.  In 
his  message  to  Congress  of  December  7,  1811,  President  Tyler  said, 
5  The  failure  on  the  part  of  Spain  to  pay  with  i)unctuality  the  interest 
due  under  the  convention  of  18  i4,  for  the  settlement  of  claims  betwi^eu 
the  two  countries,  has  made  it  the  duty  of  the  Executive  to  call  the  i)ar- 
ticular  attention  of  that  Government  to  the  subject.  A  disposition  has 
been  manifested  by  it,  which  is  believed  to  be  entirely  sincere,  to  fultill 
its  obligations  in  this  resi)ect,  so  soon  as  its  internal  condition  and  the 
state  of  its  finances  will  permit.' 

'"Mr.  IJnchanan,  when  Secretary  of  S»!:ate,  agreed  to  receive  an  an- 
nual ]>ayment  of  $30,000  at  Havana  in  full  of  the  interest  of  the 
])rincipal  provided  for  by  the  convention,  less  fift^en  hundred  dollars 
for  what  was  called  promi)t  payment.  *  *  ♦  "When  the  payment  of 
1SG2  was  about  to  be  made,  the  question  arose  whether  it  should  be 
demanded  in  coin,  or  whether  we  were  bound  by  the  act  of  Congress 
of  the  L'oth  of  February,  1862,  to  accept  the  same  in  current  money  of 
the  United  States.     The  latter  alternative  was  reluctantly  acceded  to.' 

"  Many  and  delicate  questions  arose  between  the  United  States  and 
Si>aiu  during  the  years  that  elapsed  between  the  treaty  of  1834  and 
the  outbreak  of  the  insurrection  in  Cuba  in  18118 ;  questions  which  taxed 
the  skill  and  forbearance  of  statesmen  on  both  ^ides.  But  they  did 
not  concern  the  construction  or  the  operation  of  existing  treaties  be- 
tween the  two  powers. 

288 


CHAP.  VI.]  SWEDEN    AND    NORWAY.  [§  162. 

"In  coDteudiug  with  this  iusurrectiou,  the  Government  of  Spain  con- 
ceived it  necessary  to  issue  decrees  suspending  the  right  of  alienating 
property,  and  embargoing  the  property  of  some  citizens  of  the  United 
States,  who  were  suspected  of  being  connected  with  the  insurgents. 
Mr.  Fish  called  attention  to  the  fact  that  the  enforcement  of  such  de- 
crees against  citizens  of  the  United  States  and  their  properties  might 
be  regarded  as  violations  of  the  7th  article  of  the  treaty  of  1795.  As 
had  been  foreseen,  mauy  complaints  arose,  w  hich,  on  the  9th  of  June, 
1870,  Mr.  Fish  brought  to  the  attention  of  the  Spanish  minister  in 
Washington,  saying,  'It  appears  to  the  President  that  the  sweeping  de- 
crees of  Ajiril,  1809,  have  been  put  in  operation  against  the  properties 
of  the  citizens  of  the  United  States,  in  violation  of  the  treaty  agree- 
ment that  such  i)roperty  should  not  be  subject  to  embargo  or  deten- 
tion for  any  public  or  private  purpose  whatever.  *  *  *  It  is  under- 
stood that  the  citizens  of  the  United  States  whose  properties  have  been 
thus  forcibly  taken  from  them  have  not  been  allowed  to  employ  such 
advocates,  solicitors,  notaries,  agents,  and  factors  as  they  might  judge 
l)roper;  on  the  contrary,  as  this  Government  has  been  informed,  their 
])roperties  have  been  taken  from  them  without  notice,  and  advocates, 
solicitors,  notaries,  agents,  or  factors  have  not  been  allowed  to  inter- 
pose in  their  behalf.  *  *  *  tj^j  nudersigued  has  also  received  rep- 
resentations from  several  citizens  of  the  United  States,  complaining  of 
aibitrary  arrest,  and  of  close  incarceration  without  permission  to  com- 
municate with  their  friends,  or  with  advocates,  solicitors,  notaries, 
agents,  and  factors,  as  they  might  judge  proper.  *  *  *  lu  some 
cases,  also,  such  arrests  have  been  followed  by  military  trial,  without 
the  opportunity  of  access  to  advocates  or  solicitors,  or  of  communica- 
tion with  witnesses,  and  without  those  personal  rights  and  legal  pro- 
tections which  the  accused  should  have  enjoyed.  *  *  *  What  has 
been  already  done  in  this  respect  is  unhappily  past  recall,  and  leaves 
to  the  United  States  a  claim  against  Spain  for  the  amount  of  the  inju- 
ries that  their  citizens  have  suffered  by  reason  of  these  several  viola- 
tions of  the  treaty  of  1795.' 

"  Tiie  subject  was  referred  to  .Madrid,  where,  after  some  corresi)ond- 
ence,  the  agreement  of  February  12,1871,  was  concluded. 

''  Under  this  agreement  the  United  States  presented  a  claim,  on  be- 
lialf  of  a  person  who  had  declared  his  intention  to  become  a  citizen, 
but  had  not  yet  become  one.  The  Spanish  agent  objected  that  it  did 
not  come  within  the  scope  of  the  treaty.  The  two  national  commis- 
sioners being  unable  to  ngree  upon  this  question,  it  was  referred  to  the 
umpire.  Baron  Lederer,  bv  wlioui  it  was  decided  adversely  to  the  United 
States." 

Mr.  J.  C.  15.  Diivis,  Notes,  &c. 

(25)  Sweden  and  Norway. 

§  102. 

President  J.  Q.  Adams's  message  of  Fel)ruary  7,  1828,  communicating 
to  the  Senate  a  treaty  of  commerce  and  iiaAigation  between  tlie  United 
States  and  His  Miijesty  the  King  of  Sweden  and  Noiway,  concluded  at 
Stockhohn  on  the  fourth  of  .Inly,  1827,  and  ratitied  .lanuiiiy  18,  1828,  is 
given  in  House  Doe.  171,2(Mh  (Jong.,  1st  sess,,  0  Am.  St.  Pap.  (For. 
Pel),  829. 

S.  Mis.  102— VOL.  '^   19  289 


§  162.]  TREATIES.  [cnAr.  VI. 

The  6tli  article  of  the  treaty  with  Sweden  of  1783  is  understood  as 
applying  to  personal  property^  alone. 

1  Op.  275,  Wirt,  1319. 

By  virtue  of  article  2  of  the  treaty  with  Sweden,  of  April  3,  1783,  and 
articles  8  and  17  of  the  treaty  with  Sweden  and  Norway  of  July  24, 1827, 
the  provisions  of  article  4  of  the  treaty  with  Belgium  of  July  17,  18o8, 
exempting  steam  vessels  of  the  United  States  and  of  Belgium,  engaged 
in  regular  navigation  between  their  respective  countries,  from  the  pay- 
ment of  tonnage  and  certain  other  duties,  became  immediately  applica- 
ble, wn/to^is  ?Mi(^o«6?/i',  to  steam  navigation  between  the  United  States 
and  Sweden  and  Norway. 

14  Op.,  46?,  Williams,  1874. 

"  The  treaty  of  April  3,  1783,  was  concluded  with  Sweden  by  Dr. 
Franklin  as  American  plenipotentiary,  on  the  re(piest  of  that  power. 
On  the  12th  of  August,  1782,  he  writes  from  Passy  to  IJobert  Living- 
ston :  'All  ranks  of  this  nation  appear  to  be  in  good  humor  with  us,  and 
our  reputation  rises  throughout  Europe.  I  understand  from  the  Swed- 
ish embassador  that  their  treaty  with  us  will  goon  as  soon  as  ours  with 
Holland  is  finished ;  our  treaty  with  France,  with  such  improvements 
as  that  with  Holland  may  suggest,  being  intended  as  the  basis.'  On  the 
17th  of  December  he  writes  :  'The  Swedish  embassador  has  exthanged 
full  powers  with  me.  I  send  a  copj"  of  his  herewith.  We  have  had  some 
conferences  on  the  proposed  plan  of  our  treaty,  and  he  has  disjiatched 
a  courier  for  further  instructions  respecting  some  of  the  articles.' 

"  On  the  7th  of  March,  1783,  he  writes  Livingston  :  '  I  can  only  send 
you  a  line  to  acquaint  you  that  I  have  concluded  the  treaty  with  Sweden, 
which  was  signed  on  Wednesday  last.  *  *  *  It  differs  very  little 
from  the  plan  sent  me;  in  nothing  material.'  The  treatv,  in  fact,  bears 
date  April  3,  1783." 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

"  Sweden  is  the  only  power  in  Europe  that  voluntarily  ofiered  its 
friendship  to  the  United  States.  Without  being  solicited,  proposals 
were  made  for  a  treaty  before  the  independence  of  the  colonies  was  recog- 
nized by  Great  Britain.  A  general  authority  was  given  to  the  commis- 
sioners abroad,  Franklin,  Adams,  Jay,  and  Laurens,  to  conclude  treaties 
of  amity  and  commerce,  but  in  the  early  part  of  the  Revolutionary  war 
Congress  did  not  direct  applications  specially  to  be  made  to  any  of 
the  northern  i)owers,  and  most  of  the  other  courts  to  whom  agents 
were  sent  either  refused  to  receive  them  or  contrived,  under  some  pre- 
text or  other,  to  avoid  all  appearance  of  giving  aid  or  countenance  to  the 
American  Confederacy.  This  caution  or  iuditierence  cannot  be  matter 
of  censure  or  surprise.  Few  European  courts  probably  thought,  at  the 
commencement  of  the  Revolution,  that  the  colonies  could  prevail.  Few 
chose  to  take  the  risk  of  involving  themselves  in  a  maritime  war  with 
England.  With  the  name  of  colonies  w^eakness  and  subjection  were 
then  naturally  associated.  The  conduct  of  Sweden  was  marked  with 
frankness  and  with  a  very  friendly  character.  America  could  not  ex- 
pect much  aid  from  that  country,  or  suppo.se  that  her  example  could 
have  a  great  deal  of  influence  on  other  nations.  But  it  was  highly 
gratifying  that  a  state  renowned  as  Sweden  always  has  been  for  the 
bravery  and  love  of  independence  of  her  ])eople  should  manifest  a  sym- 

290 


CHAP.  VI.]  SWITZERLAND TKIPOLI.  [§§  163,  164. 

pathy  in  the  arduous  struggle  for  liberty  in  a  distant  country.  The 
proposal  for  a  treaty  was  entirely  unsought  for  on  the  part  of  Congress. 
The  only  account  we  possess  of  the  transaction  is  in  one  of  the  letters 
of  Dr.  Franlilin.  The  Swedish  minister  at  Paris,  the  Count  de  Creutz, 
called  on  him  toward  the  end  of  June,  1782,  by  the  direction  of  his  sov- 
ereign, Gustavus  III,  to  inquire  if  he  was  furnished  with  the  necessary 
powers  to  conclude  a  treaty  with  Sweden.  In  the  course  of  the  conver- 
sation he  remarked  '  that  it  was  a  pleasure  to  him  to  think,  and  lie  hoped 
if  icould  be  remembered,  that  Sweden  was  the  first  power  in  Europe 
which  had  voluntarily  offered  its  friendship  to  the  United  States  with- 
out being  solicited.'  Dr.  Franklin  communicated  the  application  of  the 
Swedish  envoy  to  Congress,  and  instructions  were  shortly  after  sent 
him  to  agree  on  a  treaty.  The  treaty  was  concluded  at  Paris  on  the  3d 
of  April,  1783,  by  Dr.  Franklin  with  the  Count  Gustavus  Philip  de  Creutz, 
and  in  its  provisions  it  resembles  others  made  with  the  powers  of  Europe 
at  that  time.  This  is  the  only  treaty  we  had  with  that  country  till 
1816,  but  tlie  most  friendly  relations,  however,  have  been  always  main- 
tained." 

1  Lymau's  Diplomacy  of  the  U.  S.,  447^. 

(26)  Switzerland. 

§163. 

Under  our  treaties  of  1847  and  1850  with  Switzerland  a  citizen  of  the 
United  States  is  as  freely  entitled  to  hold  property  in  Switzerland  as  is 
a  citizen  of  Switzerland. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fish,  Sept.  20,  1879.     MSS.  lust.,  Switz. 

Under  the  convention  for  extradition  between  the  United  States  and 
Switzerland,  it  is  sufiScient  if  the  crime  be  subject  to  infamous  i)unish- 
nieiit  where  it  was  committed. 

In  re  Francois  Farez,  7  Blatcli.,  345. 

Article  1  of  the  treaty  of  1850,  providing  that  citizens  of  the  United 
States  shall  be  at  liberty  to  prosecute  and  defend  their  rights  before 
courts  of  justice  in  Switzerland  in  the  same  manner  as  native  citizens, 
gives  the  right  to  maintain  an  action  against  the  Government  as  such 
right  is  given  to  citizens  of  Switzerland. 
Lobsiger's  Case,  .'S  C.  Cls.,  687. 

The  treaty  stipulation  in  respect  to  aliens  taking  title  to  real  estate  is 
noticed  in  other  sections. 

Supra,  $  138;  infra,  ^  201,  citing  Hauensteiu  v.  Lynbam,  100  U.  S.,  488. 

(27)  TuiPOLl. 

§164. 

The  treaty  with  Tripoli,  giving  our  consuls  jurisdiction  of  litigation 
between  citizens  of  the  United  States,  does  not  cover  cases  in  which 
both  jKirties  are  such  citizens. 

Mr.  Clayton,  Sec.  of  Slate,  to  Mr.  McCaiiley,  S.'pt.27,  1,-<1'.>.     .M^S.    hist.,  Iknh. 
PowerH.     .See  a.s  to  IJarb.  Vowarn,  nupra,  $  141a:  as  to  Turkey,  infra,  ^  165. 
As  to  Mr.  15arli)\v's  Harltary  negot  iaf  ions,  sc-e  mipra,  ^  Mlrt. 

291 


§  165.]  TREATIES.  [CUAP.  V.. 

(28)   TUKKKY. 

§  IGo. 

"The  correct  nicaniiif?  of  the  iburth  ju-ticle  of  the  treaty  of  1830, 
between  the  United  States  and  Turkey,  lias  for  some  time  past  been 
under  consideration  here.  The  various  transhitions  of  the  Turkish 
orijiinalof  that  article  made  at  Constantinoi)le  and  in  this  country  have 
been  carefully  comi)ared,  and  the  conclusion  arrived  at  is  that  the  I'^n- 
jilish  version,  ui)on  the  faith  of  which  the  treaty  was  ratilied  by  the 
Senate  and  the  President  of  the  United  States,  is  erroneous.  According;- 
to  that  version  a  citizen  of  the  United  States  who  may  have  committed 
a  misdemeanor  or  a  crime  in  Turkey  ajjainst  a  Turk,  or  a<,Minst  the 
Turkish  Government,  cannot  be  arrested  even  on  rnctme  process,  or  im- 
prisoned by  the  local  authorities,  and  if  tried  tlierefor,  this  must  be  by 
the  United  States  minister  or  consul. 

"Considerin<j  the  virtual  impunity  which  such  a  stipulation  as  this 
bestows  upon  evil  disposed  citizens  of  the  United  States,  in  that  country, 
it  is  unaccountable  that  no  more  serious  distrust  of  the  accuracy  of  the 
translation  should  have  been  entertained  than  the  archives  of  the  De- 
partment disclose. 

"The  history  of  that  translation  appears  to  be  as  follows: 

"Mr.  Charles  Ivhind,  who  as  a  special  agent  of  the  United  States, 
proceeded  to  Turkey  in  1829,  for  the  purpose  of  negotiating  the  treaty, 
employed,  on  arriving  at  Constantinople,  one  Xavoni  as  his  dragoman. 
A  French  version  of  the  Turkish  by  this  Xavoni,  and  another  in  the 
same  language  by  another  hand,  accompanied  the  original  treaty  sent 
hitlier  by  Mr.  Khind.  It  is  presumed  that  neither  of  these  versions 
was  entirely  satisfactory  to  Mr.  Van  Buren,  then  Secretary  of  State, 
for,  pursuant  to  his  direction,  Mr.  William  B.  Hodgson,  then  employed 
in  the  Department,  and  afterwards  its  ofUcial  translator,  made  another 
translation,  which  purports  to  have  been  from  the  original  Turkish.  It 
is,  however,  obvious  on  inspection  that  Mr.  Hodgson's  translation  is  not 
from  the  Turkish  original,  but  seems  to  be  compounded  from  the  two 
French  versions  above  referred  to,  both  of  which  err,  as  alleged  by  the 
Turkish  Government,  and  as  the  other  translations  recently  made  plainly 
show. 

"  If  reasonable  weight  be  allowed  to  the  objection  of  the  Turkish  Gov- 
ernment that  it  could  not  have  been,  and  was  not  their  intention  to  have 
placed  United  States  citizens,  offenders  in  Turkey,  on  a  more  favorable 
footing  than  citizens  or  snbjects  of  other  countries,  it  is  obvious  that  this 
objection  is  decidedly  at  variance  with  the  English  version  of  the  4th 
arlicle  of  our  treaty  as  approved  by  the  Senate,  and  proclaimed  by  the 
President  of  the  United  States.  The  English  translation  of  the  7th 
article  has  also  been  pronounced  defective  by  that  Government,  as  its 
corresi)on(lence  with  your  i)redecessor,  Commodore  Porter,  will  show. 
292 


CHAP.  VI.]  TURKEY.  [§  165. 

"  Ambiguities  and  iuaccuracies  of  this  cLaracter  respectiug  sueb  iui- 
portaut  instriiments  are  to  be  deplored ;  every  jiroper  eflbrt  sbould  be 
made  to  avoid  them,  and  when  brought  toHght  they  should  becorrected. 

''The  President  cannot  take  it  upon  himself  to  determine  whether  the 
Senate  would  or  would  not  have  advised  and  consented  to  the  ratifica- 
tion of  the  treaty  had  it  been  understood  in  the  sense  which  we  are  now 
satisfied  that  it  bears,  nor  is  he  disposed,  without  the  advice  of  the  Sen- 
ate, either  to  promulgate  a  new  and  correct  translation  or  to  ask  the 
Government  of  Turkej'  to  enter  into  a  new  treaty,  conforming  to  the 
English  version  which  was  proclaimed  by  President  Jackson.  He  has 
therefore  determined  to  submit  the  facts  to  the  consideration  of  the 
Senate  and  await  its  resolution  before  inaugurating  any  diplomatic 
action.  You  are  instructed  in  the  mean  time  to  avoid,  and  direct  our 
consular  officers  to  avoid,  making  any  issue  the  maintaining  of  which 
depends  upon  the  English  versions  of  the  4th  and  7th  articles  of  the 
treaty  which  is  contained  in  our  statutes,  or  drawing  in  question  the 
construction  which  the  Government  of  Turkey  puts  upon  the  original 
document." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Morris,  Oct.  9,  18U9.     MSS.  Inst.,  Turkey;  For. 
Kel.,  1870. 

The  correspondence  which  ])receded  this  treaty  is  given  in  Senate 
Confidential  Ex.  Doc.  E,  41st  Cong.,  2d  sess. 

"  I  have  no  hesitation  in  confirming  the  conclusion  reached  by  my 
distinguished  predecessor  on  the  19th  of  October,  1869,  '  that  the  En- 
glish version,  upon  the  faith  of  which  the  treaty  (of  1830)  was  ratified  by 
the  Senate  and  the  President  of  the  United  States,  is  erroneous.'" 

Mr.  Evarts,   Sec.   of   State,  to  Aristarebi   Bey,  Dec.   18,   1877.     MSS.  Notes, 
Turkey. 

But  "  this  translation  was  nevertheless  the  faithful  reproduction  in 
substance  of  the  purposes  of  the  American  plenipotentiaries,  and  as 
such  received  the  sanction  of  the  Senate  and  the  President  of  the 
United  States,  aud  thus  became  for  this  nation  the  binding  law  whose 
precepts  may  not  be  unheedingly  disregarded,"  and  the  English  trans- 
hition,  though  technically  inaccurate,  reflects  the  spirit  of  (he  negotia- 
tion and  treaty. 
Ihid. 

"  It  is  granted  that  the  present  official  translation,  on  the  faith  of 
which  the  Senate  advised  and  consented  to  the  ratification  of  (he  treaty, 
is  erroneous.  But  until  it  is  fully  replaced  by  a  version  having  the 
sanction  of  mutual  consent,  it  is  not  competent  for  the  Senate  to  revoke 
<ir  revise  its  ])revious  decision,  or  for  the  President  to  disregard  the  ex- 
isting statute.  Suspension  of  (he  effect  of  the  (!on(r<)verted  clause, 
Itending  an  adjustment,  is  the  extrciiiest  limit  to  which  the  Ivxcciitive 
I)ower  can  go." 

Saiuo  to  Hauie,  Mar.  ISO,  1878;   ibid. 

293 


§  165.]  TREATIES.  [CHAr.  VI. 

"  ]  am  (liivctod,  in  the  liist  ^)lac(.',  by  the  riosideiit.  to  admit,  on  the 
part  of  the  Governmeut  of  the  United  States,  that  the  Uuited  States 
are  bound  by  the  Turkish  text  of  the  treaty  of  1830,  which  was  signed 
in  tliat  text  alone.  1  make  this  admission  the  more  clieerlully  in  \iew 
of  your  repeated  assurances,  in  the  name  of  your  Government,  that  not 
only  shall  the  true  intent  of  that  text  be  observed,  but  also  that  the 
citizens  of  the  United  States  within  Ottoman  jurisdiction  shall  have 
the  treatment  accorded  to  the  citizens  or  subjects  of  the  most  favored 
nation,  either  by  treaty  or  by  virtue  of  existing  local  laws  or  customs," 

Same  to  same,  May  14,  IStfO;  ibid.     See  on  this  topic,  same  to  same,  Jniie  26, 
ItWO;  ibid. 

The  arrange:nent  of  1884  with  Turkey  as  to  the  sale  of  books  in 
Turkey  constitutes  an  international  understanding  not  to  be  set  aside 
by  eitiier  party,  unless  for  good  and  suflQcient  reason. 

iMr.   rivlingbiiysei),   Sec.  of  State,   to  Mr.   lloap,   Jan.  10,  iaS.%.     MSS.  Inst., 
Turkey. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
L'Gth  ultimo,  concerning  the  true  interpretation  of  article  4  of  the  treaty 
of  1830,  between  the  Uuited  States  and  the  Ottoman  Porte,  in  so  far 
as  it  concerns  the  treatment  of  American  citizens  accused  of  crime  in 
Turkey. 

•'It  appears  to  be  your  desire  to  avoid  the  extended  discussion  of  de 
tails  which  has  attended  the  question  for  several  years  past,  and  treat 
it  in  its  most  practical  aspects.  To  that  end  you  confine  your  represent- 
ations to  certain  elementary  considerations  which,  if  I  rightfully  nn- 
derstand  your  note,  you  regard  as  conclusive  in  themselves  and  as 
rightly  sufficient  to  have  closed  the  coutrovers}'  before  now,  under  the 
instructions  given  to  the  United  States  minister  at  Constantinople  to 
examine  and  settle  the  facts. 

"  This  Department  is  equally  desirous  to  avoid  traveling  anew  the 
path  of  previous  argument.  The  matter  seems  to  it  to  be  one  readily 
restricted  to  precise  limits  within  which  it  might  have  been  determined 
at  any  time  in  the  past  fifty  years  if  your  Government  had  met  the  real 
issue  by  a  positive  statement  of  the  precise  meaning  of  the  Turkish  text 
of  the  fourth  article  in  dispute. 

"A  part  of  your  argument  appears  to  rest,  permit  me  to  say,  on  a  fal- 
lacious assumption.  You  go  back  to  Mr.  Porter's  declaration  in  1831 
that  the  Turkish  text  should  be  the  standard  in  case  of  doubt  as  to  the 
meaning  of  the  treaty,  and  you  next  quote  (with  some  verbal  inaccura- 
cies) the  words  of  Mr.  Evarts  in  his  note  of  May  14, 1880,  as  follows  : 
*I  am  directed  by  the  President  to  admit,  on  the  part  of  the  Govern- 
ment of  the  United  States,  that  the  United  States  are  bound  by  the 
Turkish  text  of  the  treaty  of  1830,  which  was  signed  in  that  text  alone. 
I  make  this  admission  the  more  cheerfully  in  view  of  your  repeated  as- 
surances in  the  name  of  your  Government  that  not  only  shall  the  true 
294 


CHAP.  VI.]  TURKEY.  [§  165. 

intent  of  that  text  be  observed,  but  also  that  the  citizens  of  the  United 
States  witbiu  Ottoman  jurisdiction  shall  have  the  treatment  accorded 
to  the  citizens  or  subjects  of  the  most  favored  natiou,  either  by  treaty  or 
by  virtue  of  existiug  local  laws  or  customs,'  both  of  which  you  take  as 
showiug-  that  'the  United  States  Government,  yielding  to  evidence, 
finally  adhered,  it  is  true,  in  principle  to  the  vieic  tal-en  of  this  question 
by  the  Sublime  Porte.'  You  surely  do  not  wish  to  be  understood  as 
claiming  that  an  admission  of  the  Turkish  text  as  the  standard  is  equiv- 
alent to  a  blind  acceptance  of  the  interpretation  which  the  Porte  may 
see  fit  to  give  to  that  text,  where  the  language  itself  is  ambiguous. 
As  Mr.  Bancroft  Davis,  then  Acting  Secretary  of  State,  had  the  honor 
to  inform  Aristarchi  Bey  on  the  30th  of  December,  1881,  '  The  President 
has  not  intimated  a  purpose  of  yielding  to  the  Ottoman  construction  of 
the  treaty  of  1830,  or  of  abandoning  in  any  way  what  he  regards  as  the 
just  rights  of  the  United  States.' 

"  The  simple  question  is  now,  and  always  has  been,  what  was  the 
meaning  of  the  treaty  of  1830  ?  In  other  words,  what  did  it  stipulate  for 
American  citizens  in  Turkey  in  1830  ? 

"You  are  doubtless  familiar  with  the  precedent  correspondence,  and 
will  therefore  recall  without  difficulty  the  many  occasions  on  whicli  this 
Government  has  asked  that  of  Turkey  to  furnish  an  intelligible  para- 
phrase of  the  disputed  article,  and  to  explain  what  was  the  usage  toward 
other  Franks  in  1830.  Not  the  slightest  attempt  to  enlighten  this  Gov- 
ernment on  those  two  all-important  points  has  been  made. 

"  The  treaty  was  negotiated,  as  you  are  aware,  in  the  French  tongue. 
The  commissioners  agreed  upon  a  text  in  French,  embracing  certain 
stipulations.  The  reports  of  the  negotiations  which  accompanied  the 
text  showed  the  occasion  for  those  stipulations  and  their  nature.  With 
regard  to  the  clause  in  dispute,  forbidding  the  arrest  and  imprisonment 
of  American  citizens  by  the  local  judges,  and  leaving  to  their  ministers 
or  consuls  the  power  to  punish  them,  as  in  the  case  of  other  Franks, 
the  negotiators  remarked  that  this  clause  was  not  always  strictly  ob- 
served in  the  case  of  other  Franks ;  that  the  Turkish  authorities  in 
1830  frequently  arrested  Franks,  who  were  thereupon  demanded  and 
obtained  with  difficulty  by  the  foreign  ministers.  There  seems  to  have 
been  no  doubt  in  their  minds  as  to  the  extent  of  the  stipulated  privilege. 
The  French  text,  so  agreed  upon,  was  accepted  by  the  Turkish  nego- 
tiators, and  the  American  negotiators  were  thereupon  furnished  by  the 
Turks  with  a  version  in  the  Turkish  language,  which  they  were  assured 
was  a  faithful  equivalent  of  the  French  text  agreed  upon. 

"  If,  under  thei^e  circumstances,  the  efl'ect  of  tran.slation  was  to  occasion 
difl'erences  between  the  two  texts,  it  would  seem  to  be  due  to  transla- 
tion from  French  into  Turkish.  However  this  may  be,  they  could  have 
been  verbal  merely,  for  to  tsnpposc*  that,  under  tlic  assurance  of  equiv- 
alence,a  Turkish  text  was  submitted  ladiealiy  dillerent  from  the  French 
text  agreed  upon,  -vould  be  to  ifni)ute  something  very  like  bad  faith  to 

295 


§  165.]  TREATIES.  [chap.  VI. 

the  Tuikisli  negotiators — an  iinputation  wiiich  this  GovoiiJiiR'nt  lias  no 
desire  to  make. 

"The  Turkish  (loveriniioiit  (Iciiicsabsoluloly  the  existence  in  tlie  Turk- 
ish text  of  certain  phrases  found  in  the  I'^n^^lisli  text.  It  says:  'The 
words  ^'•thcy  shall  be  tried  hy  their  )iii)u.ster  or  vou.siil  dtid  2n(i(i>>'hed  aeeord- 
ing  to  their  offense'-  no  more  exist  in  the  text  than  the  words  ^'thej/  shall 
not  he  arrested. ^^^ 

"Omit  these  words  and  the  reniainiuLi  lexl  heeonies  ulleiiy  nieanin.u- 
less.  Nothing  whatever  is  stipuhited  save  the  usage  observed  toward 
other  Franks.  This  nuist  be  more  than  'merely  the  eUect  oi  transla- 
tion.' 

"Tliis  Department  possesses  twenlyormore  translations  from  the 
original  Turkish  text,nmde  by  eminent  scholars  and  imi)artial  experts. 
All  these  versions,  without  exception,  contain  jdirases  closely  following 
those  which  the  Porte  says  do  not  exist  at  all,  and  all,  despite  wide  ver- 
bal diflerences  (merely  the  effect  of  translation),  agree  in  stipulating 
that  no  American  citizen  shall  be  imprisoned  in  a  Turkish  prison,  but 
shall  be  punished  through  the  instrumentality  of  his  minister  or  consul. 

"  The  inference  is  irresistible  that  something  of  the  nature  of  an  extia- 
territorial  privilege  was  stipulated,  and  that  the  words  on  which  your 
Government  lays  such  stress — '  following  in  this  respect  the  usage  ob- 
served towards  other  Franks' — are  simply  explanatory.  They  refer 
merely,  by  way  of  illustration,  to  a  well  known  state  of  things  existing 
in  1830,  when,  as  Mr.  Rhiud  shows,  all  the  foreign  ministers  success- 
fully resisted  the  occasional  mistaken  eflbrt  of  a  Turkish  officer  to  ar- 
rest Frankish  sul>jects.  They  do  not  contain  by  limitation  the  whole  of 
the  concession. 

"  Moreover,  this  ex])lanatory  clause  as  to  the  treatment  of  other  Fianks 
was  clearly  not  intended,  in  1830,  to  subject  American  citizens  for  the 
future  to  whatever  changes  might  thereafter  supervene  in  the  Turkish 
treatment  of  other  I'ranks.  The  stipulation  was  meant  to  rest  on  a 
solid  basis,  not  on  a  delusive  quicksand,  shifting  with  each  varying 
provision  of  Turkish  law.  This  is  evident  when  Me  remember  that  in 
1830  there  were  no  tribunals  to  wliich  foreigners  were  amenable,  and 
that  the  system  of  jurisprudence  to  which  the  Porte  claims  that  Ameri- 
can citizens  are  to  be  subjected  originated  long  after  the  treaty  of  1830. 

"  The  Turkish  ground  as  to  the  judicial  treatment  of  Franks  changes 
every  year.  One  example  will  suflice.  In  the  past  corresi)ondence  the 
Porte  and  its  representative  here  have  repeated  with  the  most  solemn 
asseverations  the  assurance  that  the  treaty  in  the  Turkish  text  dis 
tinctly  reserved  to  our  ministers  and  consuls  the  sole  right  to  imprison 
American  citizens  even  in  pursuance  of  a  Turkish  judgment  whose 
validity  we  have  denied,  and  yet,  recently,  an  American  citizen,  Dr. 
Pflaum,  has  suffered  imprisonment  in  a  Turkish  prison  by  virtue  of  a 
Turkish  judicial  sentence. 
29G 


CHAP.  VI.]  TURKEY.  [§  165. 

"  I  may  lecogDize  a  desire  ou  the  part  of  the  Poite  to  biiug  the  treat- 
ment of  all  Franks  under  the  provisions  of  its  recent  judicial  legislation; 
but  this  desire  is  limited  in  its  effects  by  treaty  rights.  It  would  appeal 
to  be  the  intention  of  the  Porte  to  eliuiinate  from  the  last  part  of  arti- 
cle 4  of  the  treaty  of  1830  all  that  enunciates  any  specific  privilege, 
and  leave  only  a  vague  favored  nation  clause,  whereby  American  citi- 
zens shall  receive  the  most  favorable  treatment  which  for  the  time  being 
may  be  accorded  to  any  other  Frank.  This  a  very  narrow  result.  We 
are  willing  to  regard  the  phrase  touchiug  the  treatment  of  other  Franks 
as  having  some  of  the  quality  of  a  most  favored  nation  clause  ;  that  is, 
if  any  other  Franks  have  a  more  favored  treatment  than  that  specifically 
stipulated  in  our  treaty,  an  American  citizen  might  rightly  claim  such 
extension  of  favor.  But  it  is  not  in  itself  a  most  favored  nation  clause, 
nor  does  it  stand  alone,  independent  of  the  specific  stipulations  of  the 
article  in  which  it  is  found. 

"  In  every  aspect  of  the  case  there  are  two  vital  considerations :  first, 
the  true  meaning  of  the  text  of  the  treaty,  and,  secondly,  the  treatment 
of  Franks  in  1830,  when  the  treaty  was  signed.  As  to  both  of  these 
our  efforts  to  obtain  a  distinct  declaration  from  the  Porte  have  failed. 
Our  last  attempt  to  obtain  the  needed  light  on  the  subject  has  been  com- 
jdetely  ignored.  An  instruction,  No.  41,  of  March  3, 1882,  was  sent  to 
Mr.  Wallace,  summarizing  the  whole  situation  in  the  frankest  spirit  and 
with  the  sole  desire  to  put  an  end  to  this  controversy.  On  the  29th  of 
October,  1882,  ^Ir.  Wallace  communicated  a  copy  of  that  dispatch  to  his 
excellency  Said  Pasha,  the  Porte's  minister  for  foreign  aftairs.  No  an- 
swer has  been  made.  As  I  infer  from  your  note  of  April  2G,  1884,  that 
you  are  not  even  aware  of  the  existence  of  my  communication  of  March 
3, 18S2, 1  send  you  a  copy  thereof  for  jour  information,  omitting  the  in- 
closures,  which,  as  you  will  see,  are  of  record  in  your  legation. 

'•  T  write  you  this  from  a  courteous  desire  that  you  may  fully  compre- 
hend the  situation,  not  with  any  purpose  of  transferring  the  discussion 
back  to  Washington  for  speculative  and  impractical  discussion.  As  I 
said  in  my  note  to  Aristarchi  Boy,  of  August  29, 1882,  '  General  Wal- 
lace is  in  a  position,  under  the  instructions  heretofore  sent  to  him,  to 
respond  to  any  proposal  or  argument  which  his  excellency  the  minister 
for  foreign  aftairs  may  see  fit  to  address  to  him.'" 

Mr.  Freliiigliiiyseu,  Sec.  of  State,  to  Tcvfik  PasLa,  May  'M,  1884.     MSS.  Notes, 

Turkey;  For.  Rel.,  l&io. 
Ah  to  questions  of  interpretation  when  there  are  conflicting  versions,  see  U.  S. 

V.  Arndondo,  C  Pet.,  001,  cited  supra,  ^  13:?. 

"I  have  had  the  honor  to  examine  the  note  verhale  dated  the  30th 
August  last,  and  handed  by  you  to  the  Acting  Secretary  of  State,  Mr. 
Davis,  on  that  date.  You  therein  review,  from  the  jjosition  held  by  the 
(government  of  the  Porte,  the  i)eniling  (piestions  between  the  two 
cotintries  concerning  the  duration  of  the  ellects  of  the  treaty  of  1802, 
and  conununicate  the  declaration  made  to  the  cliarg(5  d'afl'air«'s  of  the 

297 


§  165.]  TREATIES.  [chap.  VI. 

United  States  at  Constantinople,  that,  considering  the  treaty  as  no 
longer  having  any  legal  force,  the  Sublime  Porte  will  levy  an  ad  valorem 
duty  on  American  goods  introduced  into  Turkey.  And  you  conclude 
bj'  stating  the  desire  of  the  Porto  that  the  United  States  legation  at 
Constantinople  be  directed  to  ai)point  delegates  for  the  purpose  of  ne- 
gotiating a  new  treaty  and  a  new  tariii". 

"  I  have  noted  especially  the  concluding  words  of  your  note  verbale, 
that  'it  is  impossible  for  the  Imperial  Government  to  recede  from  the 
position  which  it  has  taken  in  relation  to  this  question.' 

"  I  regret  *^o  see  in  this  communication  an  apparent  departure  from 
assurances  repeatedly  made  by  the  Government  of  the  Porte,  both  at 
Constantinople  and  through  its  representatives  in  this  capital,  that  the 
goods  and  citizens  of  the  United  States  should  receive  in  any  contin- 
gency' the  treatment  of  the  most  favored  nation.  The  proposals  here- 
tofore made  by  us  to  continue  such  treatment  while  negotiating  a  nevv^ 
treaty  were  based  on  these  assurances  of  Turkey. 

"As  relates  to  these  assurances,  I  need  scarcely  do  more  than  refer 
you  to  the  words  of  your  own  note  of  May  22  last,  w^herein,  while  stat- 
ing the  inability  of  Turkey  to  accept  the  letter  of  the  proposal  made  by 
the  United  States,  you  make  the  following  declaration  : 

''  'As  to  the  fear  which  you  express  that  the  commerce  of  the  United 
States  will  be  placed  on  a  lower  footing  in  consequence  of  the  abroga- 
tion of  the  treaty  of  18G2,  while  other  powers  have  treaties  of  longer 
duration,  and  that  Anierican  commerce  will  there])y  be  subjected  to  a 
disadvantageous  rdgime,  I  can  assure  you,  in  the  name  of  my  Govern- 
ment, that  the  Sublime  Porte  entertains  no  such  idea.  The  esteem  and 
regard  which  it  has  always  manifested  for  the  United  States  are  a  sure 
guarantee  that  it  will  maintain  their  rights  as  it  has  done  in  the  past.' 

"  Many  such  declarations  might  be  cited  from  the  notes  of  yourself 
and  your  predecessors  and  of  the  ministers  of  foreign  affairs  of  the 
Porte  to  the  same  effect,  but  in  more  unequivocal  language  even  than 
yours. 

"  Besides  these  assurances,  the  United  States  are,  in  virtue  of  a  treaty 
whose  existing  validity  is  beyond  a  doubt,  entitled  to  the  treatment  of 
the  most  favored  nation. 

"  The  proposals  heretofore  made  by  this  Government,  and  which  have 
been  declined  by  that  of  the  Porte,  were  based  on  these  assurances, 
and  looked  simply  to  the  continuance  of  the  most  favored  nation  treat- 
ment so  long  as  other  nations  should  be  more  favored  than  our  own, 
and  no  longer.  In  this  respect  our  proposals  are  not  at  variance  with 
the  drafts  submitted  by  your  own  Government  to  the  United  States 
minister  at  Constantinople.  The  principle  sought  to  be  confirmed  in 
both  is  the  same. 

"  This  Government  stands  ready  to  negotiate  a  new  treaty  with  Tur- 
key, whereby  the  commerce  of  the  United  States  may  be  subject  to  the 
same  increase  of  taxes  as  the  commerce  of  other  nations  with  which 

298 


CHAP.  VI.]  TURKEY.  [§  165. 

Turkey  lias  concluded  or  may  conclude  treaties,  sucli  treaty  to  take 
effect  with  the  general  enforcement  of  the  new  tariff. 

"I  cannot  but  view  the  present  notification,  whereby  the  Government 
of  the  Porte  ignores  its  assurance  of  and  agreement  for  favored  treat- 
ment, and  seeks  to  place  the  commerce  of  the  United  States  on  the 
basis  of  a  higher  taxation,  while  other  powers  are,  for  the  time  being, 
entitled  to  a  lower  rate,  as  unfavorable  to  that  good  feeling  which  should 
mark  the  negotiations  for  a  reformed  tariff  and  a  new  treaty. 

"  This  Government  would  willingly  do  all  in  its  i)ower  to  maintain 
the  good  understanding  which  should  exist  on  such  an  important  matter 
between  two  friendly  nations ;  but  it  must  be  quite  evident  to  you  that 
this  Government  cannot  willingly  accept  the  rejection  by  the  Turkish 
Government  of  the  fundamental  basis  upon  which  the  negotiation  has 
hitherto  proceeded. 

"  The  representative  of  the  Uuited  States  at  Constantinople  has  been 
instructed  to  protest  against  any  instance  which  may  come  to  his  knowl- 
edge of  the  levying  of  ad  valorem  duties  against  the  products  of  the 
United  States  to  which  the  products  of  other  nations  may  not  be  at  the 
time  liable,  as  a  violation  of  the  treaty  of  1830." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Tcvfik  PasLa,  Oct.  24,  1881.     MSS.  Notes, 
Turkey;  For.  ReL,  188.7. 

"  Your  dispatch  Xo.  20,  of  the  13th  instant,  in  regard  to  the  resump- 
tion of  tariff  conferences  with  the  Porte  is  received. 

"  In  view  of  the  friendly  disposition  in  the  premises  on  the  part  of 
the  Turkish  minister  of  foreign  affairs  and  the  grand  vizier,  as  described 
in  Mr.  Wallace's  Xo.  46G  of  the  25th  January  last,  and  as  the  accession 
of  a  new  and,  as  you  say,  liberal-minded  minister  of  foreign  affairs  seems 
to  afford  a  favorable  opportunity  for  a  renewal  of  the  negotiations  rela- 
tive to  a  new  tariff"  on  the  part  of  Turkey,  and  eventually,  if  possible,  a 
commercial  treaty,  Mr.  Heap  is  hereby  authorized  to  take  part  in  any 
conferences  for  that  purpose  under  your  general  supervision. 

"  This  Department,  though  not  fully  admitting  that  the  Turkish  Gov- 
ernment gave  due  notice  of  the  abrogation  of  the  treaty  of  1862,  never- 
theless is  disposed  to  waive  that  point  and  to  participate  with  the  other 
treaty  powers  in  the  conferences  on  the  tariff'  revision  on  the  basis  of 
the  most  favored  nation  privileges  being  granted  to  the  United  States 
in  an}-  new  agreements,  as  were  in  fact  conceded  bj"  the  treaty  of  1830. 

"  If  new  instructions  for  Mr.  Heap  should  be  necessary,  as  seems  to 
be  implied  by  his  dispatch  to  you  of  the  10th  instant,  they  should,  as  he 
suggests,  correspond  with  those  given  to  the  delegates  of  the  other  na- 
tions, making  no  allusion  to  the  treaty  of  1802  as  to  a  reiusion  of  taritf. 
By  Mr.  Wallace's  No.  476  it  appears  that  "the  Austrian  commercial 
treaty  is  now  the  only  one  with  an  undisputed  future  expiration,"  and 
that  the  Sublime  Porte  has  declined  to  accede  to  the  re(juest  of  the  Aus- 
trian amba.ssador  that  the  rates  ai)j)lied  tootlu'r  iial  ions  may  be  <'xtcii(k'd 

299 


§  1 65.J  TREATIES.  [CIIAP.  VI. 

to  his.  This  circumstance  will  not  probably,  however,  stand  in  the  way 
of  tarill'  nejiotiations  with  other  nations,  or  in  the  drawing  up  of  iden- 
tical connnercial  treaties,  as  is  reported  by  I\Ir.  Wallace  in  his  No.  4G0 
to  be  the  desire  of  the  Turkish  Government.  It  is  desirable  that  you 
should  obtain  and  transmit  to  the  Department  a  copy  of  the  draft  of  any 
such  treaty  which  may  have  been  prepared  by  the  council  of  ministers 
as  intimated  by  the  late  minister  of  foreign  affairs  to  Mr.  Wallace.  It 
is  presumed  that  Mr.  Heap  has  followed  out  his  own  suggestion  of  mak- 
ing a  valuation  of  the  articles  of  impoltation  and  a  comparison  of  the 
same  with  those  charged  on  them  as  a  basis  of  agreement  concerning 
the  rates  of  duty  to  be  charged.  Mr.  Heap  ajjpears  to  indicate  in  ft 
general  way  within  what  limits  the  new  rates  will  range. 

"  It  is  intended  that  these  instructions  should  enable  you  to  appoint 
]\lr.  lleaj)  as  delegate  from  the  United  States  for  (;onlerence  with  the 
delegates  of  the  Ottcnuan  Government  and  those  of  other  nations  with 
a  view  to  a  new  commercial  tariff." 

Mr.  liayard,  Sec.  of  State,  to  Mr.  Cox,  Oct.  528,  1885.     MSS.  Inst.,  Turkey  ;  For. 

Rel.,  188.").     See  also  same  to  same,  Mar.  4,  1886  ;  MSS.  lust.,  Turkey. 
As  to  propcsed  uaturalizatiou  treaty  with  Turkey,  see  Mr.  Bayard,  Sec.  of  State, 

to  Mr.  Cox,  Feb.  5,  188G.     MSS.  lust.,  Turkey.     Same  to  same,  March  4, 

1886;  ibid. 

The  correspondence  in  1820-'o0  relative  to  the  treaty  with  Turkey 
is  given  in  Douse  Doc.  250,  22d  Cong.,  1st  sess. 

The  protocol  of  1874  with  Turkey,  relative  to  the  right  of  United 
States  citizens  to  hold  real  estate  in  Turkey,  is  in  Treaties  of  the  U.  S., 
2d  ed.,  1880,  and  in  Brit,  and  For.  St.  Pap'.,  ]87;5-'74,  vol.  Go,  370. 

The  effect  of  Turkish  restrictions  on  naturalization,  in  respect  to  real 
estate,  is  considered  infra,  §§  171,  172. 

The  treaty  between  the  United  States  and  the  Ottoman  Empire,  con 
eluded  June  5,  18G2,  if  not  that  made  in  1830,  has  the  effect  of  conced 
ing  to  the  United  States  the  same  privilege,  in  respect  to  consular  courts 
and  the  civil  and  criminal  jurisdiction  thereof,  which  is  enjoyed  by  other 
Christian  nations  ;  and  the  act  of  Congress  of  June  22, 18G0,  established 
the  necessary  regulations  for  the  exercise  of  such  jurisdiction.  But,  as 
this  jurisdiction  is  in  terms  only  such  as  is  allowed  by  the  laws  of  Tur- 
key and  its  usages  in  its  intercourse  with  other  nations,  those  laws  or 
usages  must  be  shown  in  order  that  the  precise  extent  of  such  jurisdic- 
tion may  be  known. 

Daiuese  v.  Hale,  91  U.  S.,  13. 

By  the  act  of  March  23,  1874,  the  President  is  authorized  to  accei>t 
thejurisdiction  of  certain  mixed  tribunals;  see  the  proclamation  thereon 
of  March  27,  187G. 

Under  the  act  of  Congress  of  1848,  now  superseded,  to  carry  into  effect 
certain  i)rovisions  in  the  treaties  between  the  United  States  and  Turkey, 
giving  certain  ju<li(nal  powers  to  ministers  and  consuls,  there  being  no 
designation  of  a  particular  place  for  the  confinement  of  prisoners,  such 

300 


CHAP.  VI.]  TURKEY.  [§  165. 

place  is  left  for  regulatiou  uuder  section  five  of  the  act,  or  to  the  discre- 
tiou  of  the  actiug  functionary. 

5  Op.,  67,  Toucey,  1849. 

Citizens  of  the  United  States,  by  virtue  of  the  provisions  of  the  treaty 
of  1830  with  Turkey,  enjoy  in  common  with  all  other  Christians  the 
privilege  of  extraterritoriality  in  Turkey,  including  Egypt,  in  the  Turk- 
ish regencies  of  Tripoli  and  Tunis,  and  in  the  independent  Arabic  states 
of  Morocco  and  Muscat. 

7  Op.,  565,  Ciisliiug,  1865. 

As  to  Barbary  States,  see  sujtra,  ^  I4la, 

The  following  documents  may  be  referred  to  in  this  conuectiou: 

Bulgarian  outrages.      Report  of  Eugene  Schuyler;  President's  message,  Jan.  '23, 

lb77,  Senate  Ex.  Doc.  24,  44th  Cong.,  2cl  sess. 
Capitulations.     Report  of  Edw.  A.  Van  Dyck;  President's  message,  Apr.  6,  1881, 

Senate  Ex.  Doc.  3,  sjiec.  sess. 
Capitulations.     Second  part  of  the  report  of  Edw.  A.  Van  Dyck ;  President's  mes- 
sage, Feb.  2,  1882,  Senate  Ex.  Doc.  87,  47th  Cong.,  1st  sess. 

For  the  following  memoranda  as  to  treaties  with  Turkey,  I  am  in- 
debted to  the  notes  of  Mr.  J.  C.  B.  Davis,  as  amended  and  modified  by 
^Ir.  Adee,  Second  Assistant  Secretary  of  State : 

"  Various  attempts  were  made  prior  to  1830  to  negotiate  a  treaty'  of 
amity  and  commerce  with  the  Ottoman  Porte.  These  efforts  began  in 
1817,  before  which  time  American  commerce  in  Turkish  dominions  bad 
been  '  under  the  protection  of  the  English  Levant  Company,  for  whose 
])rotection  a  consulate  duty,  averaging  one  and  one-fourth  per  cent,  on 
the  value  of  cargoes  inward  and  outward,  was  paid.'  On  the  12th  of 
September,  1829,  full  power  was  conferred  upon  Commodore  Biddle, 
in  command  of  the  Mediterranean  squadron,  David  Ofdey,  consul  at 
Smyrna,  and  Charles  Ehind,  of  Philadelphia,  jointly  and  severally  to 
conclude  a  treaty.  They  were  instructed  to  make  a  commercial  treaty 
upon  the  most  favored  nation  basis,  and  they  were  referred  to  i)revious 
negotiations  by  Ofifiey,  in  which  he  had  been  instructed  to  '  be  careful 
to  provide  that  the  translation  shall  be  correct,  and  such  as  will  be 
received  on  both  sides  as  of  the  same  imi)ort.' 

"  Ehind  made  a  great  mystery  of  leaving  America.  lie  sailed  at  night 
in  a  packet  for  Gibraltar,  where  he  joined  Biddle,  and  they  proceeded 
together  to  Smyrna;  but  when  Offley  came  on  board  in  that  port  he  in- 
formed them  that  it  '  was  perfectly  well  known  in  Smyrna  that  they 
were  commissioners.' 

"Rhind  expressed  his  disappointment.  It  was  then  agreed  that  he 
should  go  alone  to  Constantinople  and  commence  the  negotiations,  while 
his  colleagues  waited  at  Smyrna.  lie  proceeded  there  and  presented 
his  letters  of  credence.  After  these  ceremonies  were  over  he  submitted 
a  draft  of  a  treaty  to  the  Ileis  Etfendi,  which  ai)pears  to  have  been  in 
French,  in  which  tongue  the  negotiation  was  conducted.  Sonu'  days 
later  he  was  shown  tlie  Turkisli  text  of  a  treaty,  and  was  told  by 
the  lieis  JofVendi  that  it  was 'drawn  up  in  stiict  conformity  with  the 
one  whicli  he  had  submitted,'  and  on  the  7th  of  31ay  the  treaty  of 
1830  was  signed,  the  Turkisli  text  l)eing  signed  by  the  Keis  Eflendi,  as 
it  had  been  i)rei)ared  by  him,  and  the  French  text  being  signed  by 
Ithind  after  examination  and  comiiaringit  with  the  Tuikisli.  A  secret 
and  siiparate  article  was  also  sigi»ed  at  the  saun;  time  respe(;ting  the 
building  of  ships  and  i)urchase  of  ship-timber  in   the    United   States. 

301 


§  165.]  TREATIES.  [chap.  VI. 

Rliiiul  tlioii  dispatclied  ;i  s[)('cial  messenger  to  simunon  liis  colleagues 
to  Constantinople. 

"When  they  arrived,  and  wore  made  acquainted  with  the  separate 
article,  thi-y  (lis;i))provc<l  of  the  latter;  but  rathci'  than  lose  the  treaty 
they  signed  botli  the  treaty  and  the  separate  articU'  in  French  and  in- 
formed the  Secretary  of  State  of  the  reasons  for  thi'ir  course.  This 
caused  a  great  breach  between  them  and  Ivliind. 

"The  Senate  a})provcd  of  the  tieaty  itself,  but  icjected  the  separate 
article.  l)a\id  I'orter  was  then  commissioned  as  charge  d'alfaires,  and 
was  empowered  to  exchange  the  ratilications  of  the  treaty,  and  to  ex- 
plain the  rejection  of  the  sei)arate  article.  When  he  ariived  in  Con- 
stantinople he  was  met  with  complaints  at  the  rejection  of  the  separate 
article  by  the  Senate.  Then  he  reports  tluit  a  discussion  Avas  had  'on 
the  return  of  the  translation  made  at  Washington,  instead  of  the  one 
signed  at  Constantinople,'  It  appears  fiom  the  archives  of  the  De- 
l)artment  of  State  that  four  versions  were  sent  to  America:  (1)  An 
l"]nglish  translation  from  the  original  Turkish. not  verified  ;  (2)  a  I'rencli 
translation  from  the  original  Turkish  verified  by  Navoiii,  the  Anu'rican 
driigoman  ;  (3)  a  Frencli  version  in  black  ink  with  annotations  in  red 
ink,  which  from  internal  evidence  a])pears  to  be  substantially  the  origi- 
nal draft  text  submitted  by  Ifhind  to  the  IJeis  Eliendi;  (4)  another 
English  translation  nu\de  trom  the  French.  The  translation  which 
went  before  the  Senate  and  was  acted  on  by  that  body  was  not  iden- 
tical with  either  of  these.  No  French  version  api)ears  to  have  been 
transmitted  to  the  Senate  svith  the  Turkish  text,  but  a  new  English 
version,  which,  from  internal  evidence  as  well  as  from  the  traditiou  of 
the  Uei)artment,  may  be  assumed  to  have  been  made  in  the  Department 
of  State,  mainly  from  the  French  version  Xo.  3.  Whether  this  be  so  or 
not,  it  is  not  possible  to  say  Avith  certainty,  in  the  absence  of  the  au- 
thentic French  text  said  to  have  been  signed  by  Biddle  and  his  col- 
leagues, that  such  text  was  exa(itly  rendered  by  the  version  which  was 
submitted  to  the  Senate  in  English,  and  which,  after  ratification,  was 
ollered  in  exchang:e  at  Constantinople. 

"  Porter  met  the  ditiiculty  by  signing  a  i)aper  in  Turkish  of  which  he 
returns  to  Washington  the  following  as  a  translation  :  •  Some  expres- 
sions in  the  French  translation  of  the  Turkish  instrument  exchanged 
between  the  plenipotentiaries  of  the  two  contracting  ])arties,and  which 
contains  the  articles  of  the  treaty  of  commerce  concluded  between  the 
Sublime  Porte  and  the  United  States  of  America,  not  beiiig  i)erfectly 
in  accordance  with  the  Turkish  original,  a  circumstance  i)urely  the  ef- 
fect of  translation,  and  the  Government  of  the  United  States  being 
satisfied  with  the  Turkish  treaty,  and  having  accepted  it  without  the 
reserve  of  any  word ;  therefore,  on  every  occasion  the  above  instru- 
ment shall  be  strictly  observed,  and  if,  hereafter  any  discussion  should 
arise  between  the  contracting  parties,  the  said  instrument  shall  be  con- 
sulted by  me  and  by  my  successors  to  remove  doubts.' 

"This  was  received  at  the  Department  of  State  on  the  5th  of  Decem- 
ber, 1831,  and  there  is  no  evidence  that  the  act  was  disapproved.  An 
item  was  inserted  in  the  ai)propriation  bill  to  enable  the  President  to 
carry  out  the  provisions  of  the  treaty.  Porter's  dispatches  were  placed 
at  the  service  of  the  Committee  of  Foreign  Affairs  of  the  House,  the 
subject  of  the  appropriation  was  discussed  in  the  House,  and  the  appro- 
l)riation  was  i^assed. 

"No  question  arose  respecting  the  dififerences  between  the  versions 
until  1S08,  when  the  Turks  chiimed  jurisdiction  over  two  American  citi- 

302 


CHAP.  VI.]  TURKEY.  [§  165. 

zeus,  arrested  aucl  imprisoned  by  the  Turkish  authorities  in  Syria,  for 
alleged  offenses  against  the  Ottoman  Government.  This  claim  of  juris- 
diction over  American  citizens  vras  resisted  by  E.  Joy  Morris,  the 
American  minister,  who  referred  to  that  part  of  the  4th  article  of  the 
treaty  of  1830  which  provides  that  'even  when  they  may  have  com- 
mitted Fome  offense,  they  shall  not  be  arrested  and  put  in  prison  by 
the  local  authorities;  but  they  shall  be  tried  by  their  minister  or  consul, 
and  punished  according  to  their  offense.'  The  minister  for  foreign 
affairs  replied  that  the  translation  was  incorrect;  tliat  the  words  'they 
shall  be  tried  by  their  minister  or  consul,  and  punished  according  to 
their  offense,'  and  the  words  'they  are  not  to  be  arrested,'  were  not  to 
be  found  in  the  Turkish  text;  and  he  cited  Porter's  declaration  in  sup- 
port of  his  claim  that  the  Turkish  text  should  be  accepted  as  the  stand- 
ard. Morris  then,  under  instructions,  secured,  through  the  Eussian 
ambassador,  translations  to  be  made  from  the  Turkish  text  in  Constan- 
tinople by  the  first  dragoman  of  the  Prussian  legation,  by  the  first  and 
second  dragomen  of  the  Eussian  embassy,  and  by  two  former  dragomen 
of  the  Eussian  embassy,  and  sent  them  to  the  Department  of  State. 
In  no  one  of  these  were  found  textually  combined  the  words  objected 
to  by  the  minister  for  foreign  affairs,  although  all  agree  in  guaranteeing 
immunity  from  arrest  for  crime  by  the  Turkish  authorities  and  the  appli- 
cation of  punishment  through  the  instrumentality  of  the  minister  or 
consul. 

"Mr.  Fish  then  instructed  Morris  that  the  President  had  'determined 
to  submit  the  facts  to  the  consideration  of  the  Senate,  and  await  its 
resolution  before  inaugurating  any  diplomatic  action.'  This  was  done, 
but  without  modification  or  authoritative  interpretation  of  the  text  by 
that  body. 

"The  discussion  as  to  the  true  meaning  of  the  Turkish  text,  assum- 
ing it  to  be  the  accepted  standard,  has  since  continued,  and  is  still 
pending.  The  Turkish  Government  has  controverted  the  assertion  of 
jurisdiction  by  the  United  States  minister  and  consuls  over  Americans 
cbarged  with  crime  in  Turkey  iu  several  cases,  notably  with  regard  to 
the  seaman  Kelly,  who  iu  18 —  was  tried  by  the  consul  at  Smyrna  on  the 
charge  of  murdering  a  native  Turk,  and  acquitted.  The  Turkish  Gov- 
ernment adhering  to  the  allegation  that  the  words  defining  jurisdic- 
tional rights  in  the  premises,  which  appear  in  the  Eugbsh  version,  art 
'not  to  be  found'  in  the  Turkish  text,  it  has  beeu  repeatedly  invited  to 
submit  for  consideration  an  accurate  equivalent  of  that  text,  in  French 
or  English,  but  so  far  without  result.  Meanwhile,  the  Department  of 
State  lias  accumulated  a  number  of  additional  translations  from  the 
Turkish,  made  by  high  authority  in  such  matters,  without  encountering 
one  in  which  some  form  does  not  ai)pear  of  distinct  admission  of  the  in 
tervention  of  the  minister  or  consuls  to  inflict,  administer,  or  apply  the 
l)unishment  due  to  the  crime  i)roven.  It  is  to  be  observed  in  this  rela 
tion  that  in  1838  a  tieaty  was  concluded  between  the  Ottoman  Porte 
and  Eelgium,  signed  in  i)arallel  Turki.sh  and  French  texts,  between 
which  no  discrepancy  is  alleged;  and  that  the  French  text  of  article  4 
of  that  treaty  is  identical,  as  to  extraterritorial  jurisdiction  over  citi- 
zens, witli  the  disputed  text  of  our  treaty  with  Turkey,  concluded  eight 
years  earlier.  The  same  provision  also  occurs  in  a  still  later  treaty  be- 
tween Turkey  and  I'ortugal. 

"In  bS.")."*,  before  (piestion  was  madi^  of  the  genuineness  of  the  trans- 
lation fioni  th<;  oiiginal  "^I'mkish  of  the  treaty  of  1830,  Attorney-Gen- 
eral (Jushing  held  that  citi/ens  of  Ihc  ('nitcd  States  enjoyed  the  i)iiv- 

303 


§  165rt.J  TREATIES.  [chap.  VI. 

ilege  of  extraterritorialty  iu  Turkey,  Egypt,  Tripoli,  Tunis,  and  iMorocco; 
and  Attorney-General  IJlack  held  tliat  the  consuls  had  Judicial  powers? 
only  iu  criminal  cases." 

Mr.  J.  13.  C.  Davis,  Notes,  &c.,  2d  amended  ed.     See,  as  to  Turkey,  Van  Dyke's 
report  on  Ottoman  capitnlatious. 

(2D)  Venezuela. 
§  1G5n. 

Mr.  Springer's  report  of  July  31, 187(5,  on  the  Venezuela  mixed  commis- 
sion, is  given  in  House  Kep.  787,  ilth  Cong.,  1st  sess. 

''The  treaty  of  January  20, 183G,  was  terminated  pursuant  to  notice  of 
a  decree  of  the  President  of  Venezuela,  which  was  communicated  to  the 
Secretary  of  State  by  the  secretary  of  foreign  a  Hairs  of  W'uezuela,  in 
compliance  with  the  treaty,  in  the  following  language:  'The  under- 
signed, secretary  of  state  for  the  departnu'iit  of  foreign  relations  of  the 
Jfepublic  of  Venezuela,  has  the  honor  to  inform  the  Hon.  Secretary  of 
State  and  Foreign  IJelations  of  the  Government  of  the  United  States, 
that  the  period  stii)ulated  for  the  duration  of  the  treaty  of  i)eace,  amity, 
navigation,  and  commerce,  concluded  on  the  20th  of  January,  1830,  rati- 
fied by  the  United  States  and  by  Venezuela,  respectively,  on  the  20tli 
of  April,  and  25th  of  jMay,  of  the  same  year,  and  of  which  the  ratifica- 
tions were  exchanged  in  this  city  on  the  31st  of  the  last  named  month, 
has  exi)ired  on  the  31st  of  'May  of  the  year  la.st  i>ast,  and  the  under- 
signed has  received  orders  and  instructions  from  the  I'resident  of  this 
Republic  to  notify  the  Government  of  the  United  States,  as  required  l)y 
the  34th  article,  1st  section,  of  the  said  treaty,  that  from  and  after  the 
date  of  the  receipt  of  this  notice  will  begin  the  i)eriod  of  one  year,  at 
the  end  of  which  the  treaty  will  cease  to  have  eflect  in  all  that  relate  to 
commerce  and  navigation.  His  Excellency  the  President  has  i)ublished 
the  order  whicii  causes  this  communication,  and  has  expressed  his  will 
that  the  treaty  should  cease,  in  a  decree  issued  on  the  4th  of  the  last 
month,  of  which  the  undersigned  secretary  has  the  honor  of  sending 
herewith  a  certified  copj'.' 

"Mr.  Clayton,  the  Secretary  of  State,  responded  on  the  oth  of  January, 
1850,  as  follows:  'The  undersigned,  Secretary  of  State  of  the  United 
States,  has  the  honor  to  acknowledge  the  recei[)t  of  the  note  addressed 
to  this  Department  by  his  excellency  the  minister  of  foreign  aflfairs  of 
the  liepublic  of  A'enezuela,  under  date  the  5th  of  November  last,  ac- 
companied by  a  coi)y  of  a  decree  of  the  President  of  that  Ilepuldic,  and 
expressing  a  wish  tliat  the  existing  treaty  between  the  United  States 
and  Venezuela,  in  all  those  parts  relative  to  commerce  and  navigation, 
should  ternunate  within  a  year  from  the  receipt  of  that  note,  con- 
formably to  the  tenth  paragrai»h  of  the  thirty-fourth  article  of  the 
treaty.  The  note  referred  to  having  been  received  at  this  Department 
on  the  third  instant,  the  stipulations  of  the  treaty  to  whicli  .'t  applies 
will  consequently  cease  to  be  binding  on  either  Government  on  and  after 
the  third  of  January  next.' 

"In  1859  a  claims  convention  was  made  for  the  settlement  of  what 
were  known  as  the  Aves  Island  claims.  For  the  correspondence  re- 
specting these  claims,  see  Senate  Ex.  Doc.  25,  3d  sess.  34th  Cong.  The 
last  ]>ayment  was  made  by  Venezuela  on  the  12tli  of  Sei)teml»er,  1804, 
to 'II.  S.  Sanford,  attorney  in  fact  for  the  creditors,'  who 'acknowl- 
edged to  have  received  from  the  Government  of  Venezuela,  through  the 

304 


CHAP.  VI.]  VENEZUELA.  [§  165a. 

General  Credit  and  Finance  Company  of  Loudon,  full  satisfaction  of  the 
dues  under  the  convention  made  at  Valencia  on  the  14tb  January,  1S59, 
between  the  United  States  and  the  Republic  of  Venezuela,  and  known 
as  the  Aves  convention,'  and  'in  behalf  of  the  creditors  under  said 
convention  relinquished  all  claims  upon  the  Government  of  Venezuela 
in  virtue  of  the  same,  or  of  the  convention  of  5th  June,  1SG3,  hypothe- 
cating for  its  benefit  the  export  dues  of  certain  ports  of  Venezuela.' 

''  The  treaty  of  amity,  commerce,  navigation,  and  extradition  of  1860 
was  terminated  by  notice  from  the  minister  of  Venezuela  as  follows  : 
'  The  Congress  of  the  United  States  of  Venezuela  passed,  on  the  18th 
of  May  last,  a  law  directing  the  Executive  to  notify  nations  with  which 
Venezuela  had  treaties  whose  term  had  expired  of  such  expiration. 
This  is  the  case  with  regard  to  the  treaty  of  friendship,  commerce, 
navigation,  and  extradition,  made  August  27,  18G0,  for  a  term  of  eight 
years,  counting  from  the  time  of  the  exchange  of  ratifications,  which 
has  expired  b^'  reason  of  the  said  exchanges  having  taken  place  at 
Caracas,  August  9,  18G1. 

" '  In  accordance,  therefore,  with  the  provisions  of  the  law,  I  have 
the  honor  to  make,  by  the  present  communication,  and  in  the  name  of 
my  Government,  the  notification  provided  for  in  respect  to  the  said 
treaty,  in  order  that  the  due  effect  may  be  reached,  and  that  the  com- 
pact may  cease  to  be  obligatory  in  one  year  after  the  making  of  this 
declaration  as  was  agreed  in  article  31st  of  the  same.' 

"To  this  Mr.  Fish  replied,  '  1  have  the  honor  to  acknowledge  the  re- 
ceipt of  your  communication  of  the  22d  instant,  by  which,  pursuant  to 
instructions  received  from  your  Government,  you  give  the  official  noti- 
fication to  the  United  States  of  the  intention  of  Venezuela,  as  stipulated 
in  the  31st  article  of  the  convention  of  1800  between  the  United  States 
and  Venezuela,  to  arrest  the  operations  of  said  convention  twelve 
months  from  the  date  of  said  notification.' 

"  The  commissioners  provided  for  by  the  claims  convention  of  1866 
were  duly  appointed,  and  after  examination  made  awards  against  Vene- 
zuela to  a  large  amount.  When  the  day  of  payment  came,  Venezuela 
charged  that  the  proceedings  had  been  so  irregular  as  to  vitiate  some 
of  the  awards.  The  United  States  suspended  proceedings  and  asked 
for  specific  statements  and  proof.  After  a  delay  of  overa  year  Vene- 
zuela replied  to  the  demand.  The  reply  was  laid  before  Congress. 
Congress  did  not  act  at  that  session,  but  a  subsequent  Congress  en- 
acted, February  25,  1873,  '  that  the  adjudication  of  claims  by  the  con- 
vention with  Venezuela  of  April  25,  1866,  *  *  *  is  hereby  recog- 
nized as  final  and  conclusive,  and  to  be  held  as  valid  and  subsisting 
against  the  Eepublic  of  Venezuela.' " 

Mr.  J.  C.  B.  Davis,  Notes,  &c. 

This  statute,  sometimes  known  as  the  "  Finality  act,"  was  subse- 
quently repealed  by  an  act  approved  June  20,  1878,  as  the  result  of  a 
prolonged  examination  by  Congressof  allegations  of  corruption  against 
the  members  of  the  Cardcas  mixed  commission,  and  the  matter  thus 
reverted  to  the  comi)etence  of  the  Executive.  Being  again  brought  by 
the  President  before  Congress,  that  body,  by  a  joint  resolution  approved 
March  3,  1883,  and  in  response  to  the  President's  solicitation  of  its  ad- 
visory action,  requested  the  President  "to open  diplomatic  correspond- 
ence with  the  (lovcrimient  of  Venezeula,  witli  a  view  to  the  revival  of 
the  general  stiitulatioiiK  of  the  treaty  of  April  25, 1866,  an<l  the  ai)p()int- 
ment  tliereunder  of  a  new  commission,"  to  consider  all  the  evidence 

S.  Mis.  162— vol,.  II 20  305 


^S  16G.]  TIIEATIES.  [cnAP.  VI. 

before  tlie  I'uiiner  eoiiiiiiis.sioii,  aud  such  new  evidence  as  niigbt  be  ad- 
duced, witli  powei-  to  make  new  awards,  to  the  payment  of  which  the 
moneys  aheady  paid  by  Venezuela  and  rcmainiuf;-  in  the  hands  of  the 
United  States  Government,  should  be  applied. 

Tlie  contemplated  i)roi)osal  was  made  by  Mv.  Frelinghuysen  to  Mr. 
Soteldo,  the  N'enezuelan  minister.  June  11,  1884,  but  without  satisfac- 
tory result,  and  the  President  again  considted  Congress  in  the  matter. 
The  48th  Congress  adjourned  witlu)ut  having  taken  joint  action  on  the 
eontlictiiig  reportsof  the  Senate  and  Mouse  Foreign  Committees.  The 
Executive  tliereui)on  resumed  its  i)lenary  discretion  in  the  premises, 
and  the  negotiation  with  Venezuela  was  successfully  revived,  a  conven- 
tion being  signed  at  Washington  by  Mr.  Bayard  and  I\Ir.  Soteldo  De- 
cember 5,  1885,  ])roviding  for  a  new  mixed  commission  to  hear  all  claims 
which  were  ])roi)er  to  be  brought  under  the  convention  of  18G0,  and  to 
make  awards  thereon  in  substitution  of  those  of  the  Cariicas  commis- 
sion. This  convention  was  approved  by  the  United  States  Senate,  with 
amendments  which  have  been  concurred  in  by  the  Venezuelan  Senate; 
but  u])  to  the  date  of  i)repaiing  this  volume  for  the  press  the  ratifications 
had  not  been  exchanged. 

As  to  A'cnczuclan  award,  see  i»fra,  $  'J20. 

(30)  WCltTEMDKRG. 

§1GG. 

''  On  the  14th  January  last  the  consul-general  of  Wiirtemberg  at  Xew 
York  presented,  in  behalf  of  his  Government,  its  complaint  of  the  con- 
struction put  by  the  Supreme  Court  of  the  United  States  in  Frederick- 
son  V.  The  State  of  Louisiana  (23  How.,  446),  on  the  3d  article  of  the 
treaty  of  April  10,  1844  (8  Stat.  L.,  588). 

"  In  the  case  referred  to,  a  native  of  Wiirtemberg  having  been  duly 
naturalized,  and  having  died  in  Louisiana,  bequeathing  legacies  to  kin- 
dred residing  in  Wiirtemberg,  and  subjects  of  its  King,  the  legacies  were 
subjected  to  a  tax  of  10  per  cent.  This  was  under  a  statute  of  Louisi- 
ana which  imposed  that  tax  upon  successions  devolving  on  any  persons 
not  domiciled  in  that  State,  and  not  being  a  citizen  of  any  other  State 
or  Territory  of  the  Union.  The  Supreme  Court  held  that  the  decedent 
being  a  citizen  of  the  United  States,  his  estate  was  not  within  the  provis- 
ions of  the  treaty,  which  was  intended  to  convey  only  the  case  of  a  sub- 
ject of  Wiirtemberg  bequeathing  property  in  this  country,  or  a  citizen  of 
the  United  States  dying  and  leaving  property  in  Wiirtemberg.    ♦    ♦    * 

"  This  Government,  having  no  power,  as  you  are  aware,  to  act  upon 
any  other  construction  of  the  existing  treaty  than  that  adopted  by  the 
Supreme  Court,  signified  to  the  consul-general  of  Wiirtemberg  its  readi- 
ness to  negotiate  a  new  convention  in  conformity  to  the  interpretation 
which  his  Government  puts  upon  that  now  in  force,  and  with  a  propo- 
sition to  that  effect  which  he  submitted." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Bancroft,  Ans-,  18G3.     MSS.  Inst.,  Trussia. 

The  treaty  with  Wiirtemberg  of  April  10,  1844  (article  3),  which  pro- 
vides that  "  the  citizens  or  subjects  of  each  of  the  contracting  parties 
300 


CHAP.  YI.]  WiJRTEMBERG.  [§  166. 

shall  have  power  to  dispose  of  their  personal  property  within  the  states 
of  the  other  by  testament,  donation,  or  otherwise ;  and  their  heirs,  lega- 
tees, and  donees,  being  citizens  or  subjects  of  the  other  contracting 
party,  shall  succeed  to  their  said  personal  property  and  may  take  pos- 
session thereof,  and  dispose  of  the  same  at  their  pleasure,  paying  such 
duties  as  the  inhabitants  of  the  country  where  the  property  lies  shall 
be  liable  to  pay  in  like  cases,"  has  no  application  to  the  proi^erty  of  a 
naturalized  citizen  of  the  United  States  dying  in  Louisiana.  His  prop- 
erty is  subject  to  the  same  rule  as  that  of  other  citizens  of  Louisiana, 
and  his  having  formerly  been  a  citizen  of  Wiirtemberg  gives  him  no 
rights  under  that  treaty. 

FrcdericlYSon  v.  State  of  Lonsiaua,  23  IIow.,  415.     Sco  supra,  $  138. 

307 


CHAPTER  VII. 

CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE. 

I.       ExrATIUATION. 

(1)  Principle  of  expatriation  afliruicd,  ^  171. 

(•2)  Conditions  imposed  by  Government  of  origin  have  no  cxlruterritorlal 

force,  ^  172. 
(:i)  Nor  can  the  riglits  of  foreigners  bo  limited  by  country  of  temporary 

residence  requiring  matriculation  or  registry,  $  172a. 
II.    Naturalization. 

(1)  Principles  and  limits  of,  $  173. 

(2)  Process  and  proof,  $  174. 

(.3)  Judgment  of,  cannot  be  impeached  collaterally,  but  if  fraudiileut  may 

bo  repudiated  by  Government,  $  174a. 
(4)  Mere  declaration  of  intention  insufficient,  $  175. 

III.  ABAXDONMEXT  of   CITIZEXSniP. 

(1)  Citizenship  may  be  bo  forfeited,  $  176. 

(2)  Or  by  naturalization  in  another  country,  $  177. 

(3)  Effect  of  treaty  limitations,  §  178. 

(4)  Under  treaty  with  Germany,  two  years' residence  in  Germany  jjnmc 

facie  proof  of  abandonment,  $  179. 

IV.  Liabilities  of  naturalized  citizen  on  returning  to  native  land. 

(1)  While  voluntary  expatriation  is  no  ground  for  adverse  proceedings  it 

is  otherwise  as  to  acts  done  by  him  before  expatriation,  $  180. 

(2)  If  he  left  military  duty  duo  and  unperformed,  ho  may  bo  held  to  it  if 

he  return  after  naturalization,  $  181. 

(3)  But  no  liability  for  subsequent  duty,  ^  182. 
v.    Children. 

(1)  Born  in  the  United  States  generally  citizens,  $  183. 

(2)  So  of  children  of  naturalized  citizens,  $  184. 

(3)  So  of  children  born  abroad  to  citizens  of  the  United  States,  $  185. 

VI.  Married  -women. 

(1)  A  married  woman  partakes  of  her  husband's  nationality,  ^  186. 

VII.  Territorial  change. 

(1)  Allegiance  follows,  $  187. 

(2)  Naturalization  by  revolution  or  treaty,  $  183. 
VIII.    Protection  of  Government. 

(1)  Granted  to  citizens  abroad,  $  189. 

(2)  Right  may  be  forfeited  by  abandonment  of  citizenship,  $  190. 

(3)  Care  of  destitute  citizens  abroad  not  assumed,  $  190a. 
IX.    Passports. 

(1)  Can  only  be  issued  by  Secretary  of  State  or  head  of  legation,  $  191. 

(2)  Only  to  citizens,  ^  192. 

(3)  Qualified  passports  and  protection  papers,  ^  193. 

(4)  Visas,  and  limitations  as  to  time,  $  194. 

(5)  IIow  to  be  supported,  $  195. 

(Aa  to  sea  letters,  see  $  408.) 

308 


CHAP.  VII.]  EIGHT    OF    EXPATRIATION.  [§171. 

X.      IM'IAXS   AND   CUINKSK. 

(1)  Indians,  $  196. 

(2)  Chinese.  ^  107. 

XI.     DOMICIL. 

(1)  May  give  rights  and  impose  duties,  §  198. 

(2)  Obtaining  and  i^roof  of,  ^  199. 

(3)  Effect  of,  §  200. 
XII.    Aliens. 

(1)  Eights  of,  §  201. 

(2)  Not  compellable  to  military  service,  $  202. 

(3)  Subject  to  local  allegiance,  $  203. 

(4)  And  so  to  taxation,  $  204. 

(5)  When  local  or  personal  sovereign  liable  for,  5  205. 

(6)  May  be  expelled  or  rejected  by  local  sovereign,  $  20G. 

XIII.      CORPORATIOXS. 

Foreign  corporations  presumed  to  be  aliens,  $  207, 

I.  EXPATRIATION. 

(1)  Prixciple  of  expatriatiox  affirmed. 
§  171. 

The  doctrine  of  perpetual  allegiance  was  one  of  the  settled  princi- 
ples of  the  English  common  law,  and  was  maintained  in  the  United 
States  by  high  authorities  during  the  earlier  period  of  our  Federal  his- 
tory. See  2  Kent  Com.,  49 ;  3  Story  on  the  Constitution,  3 ;  Whart.  St. 
Tr.,  654;  Whart.  Confl.  of  Laws,  §  5;  Lawrence's  Wheaton,  (ed.  1863,) 
995.  Its  assertion  by  Great  Britain,  as  a  basis  for  the  claim  to  impress 
all  native  Britons  in  foreign  ships,  is  set  forth  in  the  following  letter: 

'•  Xo  British  subject  can,  by  such  a  form  of  renunciation  as  that  which 
is  prescribed  in  the  American  law  of  naturalization,  divest  himself  of 
his  allegiance  to  his  sovereign.  Such  a  declaration  of  renunciation 
made  by  any  of  the  King's  subjects  would,  instead  of  operating  as  a 
protection  to  them,  be  considered  an  act  highly  criminal  on  their  part." 

Lord  Grenville  to  Mr.  King,  Mar.  27,  1797.     2  Am.  St.  Pap.  (For.  Eel.),  149. 

Congress,  by  an  act  adopted  July  27,  1868,  declared  that  "  the  right 
of  expatriation  is  a  natural  and  inherent  right  of  all  people,  Indis- 
])ensable  to  the  enjoyment  of  the  right  of  life,  liberty,  and  the  pur- 
suit of  hapi)iness,"  and  prescribes  "that  any  declaration,  instruction, 
opinion,  order,  or  decision  of  an.y  officer  of  this  (jovernment  which  de- 
nies, restricts,  impairs,  or  questions  the  right  of  expatriation  is  hereby 
declared  inconsistent  with  the  fundamental  principles  of  this  Govern- 
ment." 

Ecv.  Stat.,  $  1999;  15  Stat.  L.,  223,224. 

Treaties  recognizing  the  right  of  expatriation  were  executed,  ^villl 
various  modifications  in  detail,  with  the  North  German  Confederacy, 
on  February  22,  180S;  with  Bavaria,  on  ]\Iay  26,  1868;  with  liaden,  on 
July  10,  1868;  with  Wiirteniberg,  on  July  27,  1868;  with  I'elgium,  on 
Kovendx'r  Ki,  1868;  with  Ile.sse,  on  July  23,  1869;  and  with  Austria, 
on  Sei)tcmber  20, 1870.  With  England  the  negotiations  were  more  pro- 
tracted, but  were  at  last  closed  by  tlie  adojjtioii  l)y  the  Imperial  Parlia- 
ment, on  May  M,  1870,  of  an   act   by  which  it  is  declared  tliat  "any 

309 


§  171.]    CITIZENSIIir,  NATURALIZATION,  AND  ALIENAGE.     [CHAI'.  VII. 

liiitish  [subject  who  Las,  at  auy  time  before,  or  may  at  any  liiuc  after, 
tlie  passing  of  this  aet,  when  in  any  foreign  state,  and  not  under  any 
disability,  vohintaiily  beeome  naturabzed  in  sueli  state,  shall  from  and 
after  the  time  of  his  having  become  so  naturalized  in  such  foreign  state, 
be  deemed  to  have  ceased  to  be  a  Jiritish  subject  and  be  regar<led  as  an 
alieu.''  The  same  act  conlirms  the  provisions  of  treaties  by  which 
aliens  naturalized  in  England  may  divest  themselves  of  their  acquired, 
and  resume  their  native,  allegiance;  and  it  authorizes  any  ])erson  born 
in  Her  IMajesty's  dominions,  who  is  also  at  the  time  of  his  birth  a  sub- 
ject of  a  foreign  state,  when  he  arrives  at  full  age  to  elect  the  latter  alle- 
giance. 

The  political  departments  of  the  Government  have  always  united  in 
acknowledging  the  right  of  expatriation. 

See  Lawrence's  Wbeatou,  925;  Wbart.  Coull.  of  Laws,  ^  5;  Seuate  Ex.  Doc. 
38,  3Gtb  Coug.,  1st  sess.,  l.'jl?;  House  Ex.  Doc.  91,  3:kl  Cong.,  1st  scss. 

The  legislation  of  Congress  dcfmiug  naturalization  is  given  infra,  ^  173. 

Tliat  expatriation  is  a  natural  right,  see  Mr.  Jefferson  to  Mr.  Manners,  June  12, 
1817,  7  Jeff.  Works,  73;  and  to  same  general  effect,  see  2  John  Adani-s's 
\Vorks,  370 ;  7  ibid.,  174 ;  9  il)\d.,  313,  314,  321 ;  10  ihid.,  282. 

"  Your  proftered  exertions  to  procure  the  discharge  of  native  Ameri- 
can citizens  from  on  board  British  ships  of  war,  of  which  you  desire  a 
list,  has  not  escaped  attention.  It  is  impossible  for  the  United  States 
to  discriminate  between  their  native  and  naturalized  citizens,  nor  ought 
your  Government  to  expect  it,  as  it  makes  no  discrimination  itself. 
There  is  in  this  office  a  list  of  several  thousand  American  seamen  who 
have  been  impressed  into  the  British  service,  for  whose  release  applica- 
tions have  from  time  to  time  been  already  made.  Of  this  list  a  copy  shall 
be  forwarded  to  you  to  take  advantage  of  any  good  offices  you  may  bo 
able  to  render." 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  Foster,  British  minister  at  Washington,  May 
30,  1812.     MSS.  Notes  For.  Leg.     3  Am.  St.  Pap.  (For.  Rel.),  4rj4. 

The  British  Government,  during  the  war  of  1812,  refused  in  a  num- 
ber of  cases  to  treat  persons  who,  though  born  in  Great  Britain,  had" 
been  naturalized  in  the  United  States,  asi)risoners  of  war,  transferring 
them  to  prisons  and  rejecting  proposals  for  their  exchange.  The  ac- 
tion of  the  Government  of  the  United  States  in  this  relation  is  given  in 
3  Am.  St.  Pap.  (For.  Eel.),  030/".     See  also  infra,  §  331. 

"  Mexico  herself  has  laws  granting  equal  facilities  to  the  naturaliza- 
tion of  foreigners.  On  the  other  hand,  the  United  States  have  not 
pas.sed  any  law  restraining  their  own  citizens,  native  or  naturalized, 
from  leaving  the  country  and  forming  political  relations  elsewhere. 
Nor  do  other  Governments  in  modern  times  attemi)t  any  such  thing. 
It  is  true  that  there  are  Governments  which  assert  the  principle  of  per- 
petual allegiance  ;  yet,  even  in  cases  where  this  is  not  rather  a  matter 
of  theory  than  of  practice,  the  duties  of  this  supposed  continuing  alle- 
giance are  left  to  be  demanded  of  the  subject  himself,  when  within  the 
reach  of  the  power  of  his  former  Government,  and  as  exigencies  may 

310 


CIUI'.  VII.]  RIGHT    OV    EXPATRIATION.  [§  171. 

arise,  and  are  not  attempted  to  be  enforced  by  the  imposition  of  pre- 
vious restraint  preventing  men  from  leaving  their  country." 

Mr.  Weltster,  Sec.  of  State,  to  Mr.  Thompson,  July  8,  1842.    MSS.  lust.  Mex. 
6  Webster's  Works,  AM. 

"Wliat  is  important  to  the  United  States  in  this  respect,  so  far  as 
Italy  is  concerned,  is  an  agreement  on  the  principle  upon  which  the  in- 
stitutions of  the  United  States,  and  of  all  other  American  States  mainly 
rest ;  namely,  the  right  of  a  man  in  any  country  who  is  neither  convicted 
nor  accused  of  crime  to  change  his  domicile  and  allegiance  with  a  view 
to  the  free  exercise  of  his  own  faculties  and  the  pursuit  of  happiness  in 
his  own  lawful  way.  I  am  not  aware  that  any  considerable  military  in- 
convenience resulted  to  either  country  from  the  exercise  of  the  right 
mentioned  by  the  citizens  of  the  United  States  and  Italy  tluring  the 
war  iu  which  both  were  recently  engaged." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Marsli,  July  16,  18C8.     MSS.  Inst.,  Italy. 

"The  principles  to  be  settled  are,  that  it  is  the  right  of  every  human 
being,  who 'is  neither  convicted  nor  accused  of  crime  to  renounce  his 
home  and  native  allegiance  and  seek  anew  home  and  transfer  his  allegi- 
ance to  any  other  nation  that  he  may  choose ;  and  that  having  made 
and  perfected  that  choice  in  good  faith,  and  still  adhering  to  it  in  good 
faith  he  shall  be  entitled  from  his  new  sovereign  to  the  same  protection 
under  the  law  of  nations  that  that  sovereign  lawfully  extends  to  his 
native  subjects  or  citizens." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Johnson,  Sept.  23,  18C8.     MSS.  lust.,  Gr.  Brit. 

"  Your  dispatch  Ifo.  45,  of  the  16th  ultimo,  upon  the  subject  of  Miguel 
Felipe  and  Bartholome  Antich,  natives  of  Venezuela,  but  naturalized  in 
this  country,  has  been  received.  The  course  taken  by  you  in  regard  to 
the  matter  is  approved.  The  Venezuelan  minister  for  foreign  affairs, 
however,  seems  to  have  mistaken  the  meaning  of  the  clause  of  the  con- 
stitution of  that  Republic  to  which  he  refers  as  justifying  their  claim  to 
jurisdiction  over  those  persons.  That  clause  merely  affirms  a  truism 
contained  iu  many  other  constitutions,  and  founded  upon  ])ublic  law, 
that  all  persons  born  in  a  country  are  to  be  regarded  as  citizens  thereof. 
It  does  not  deny  the  right  of  expatriation,  as  the  minister  appears  to 
suppose.  Few  Governments  now  make  such  a  denial,  and  the  Depart- 
ment is  not  aware  of  any  law  of  Venezuela  which  prohibits  emigration 
from  that  country  and  naturalization  elsewhere.  If,  however,  as  ap- 
pears to  be  the  case,  the  persons  referred  to  propose  to  return  to  the 
United  States,  that  stej),  if  carried  into  eflect,  would  relieve  us  from 
further  controversy  in  regard  to  their  particular  case." 

Mr.  Fish,  Sec.  of  Stale,  lo  Mr.  Pile,  June  22,  1872.    MSS.  Inst.,  Vencz.  ;  For.  Rel., 
1872. 

"It  Nccriis  to  this  Department  that  the  individual  right  of  exjiatria- 
tion,  which  was  tiius  referred  to  by  Chief- Justice  Marshall,  is  recognized 

311 


§  171.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VIL 

by  that  clause  of  the  foiuteeutU  iiiueiidmeut  to  the  Coustitiitiou  which 
makes  subjeciion  to  tlie  jurisdictiou  of  the  United  States  an  element  of 
citizenship.  This  conclusion  is  strengthened  by  the  simultaneous  action 
of  Congress." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wasliburne,  Juno  !28,  1873.    MSS.  lust.,  France. 

"  I  invite  the  earnest  attention  of  Congress  to  the  existing  laws  of  the 
United  States  respecting  expatriation  and  the  election  of  nationality 
by  individuals.  Many  citizens  of  the  United  States  reside  permanently 
abroad  with  their  families.  Under  the  provisions  of  the  act  approved 
February  10,  1855,  the  children  of  snch  persons  are  to  be  deemed  and 
taken  to  be  citizens  of  the  United  States,  but  the  rights  of  citizeushij) 
are  not  to  descend  to  persons  whose  fathers  never  resi<led  in  the  United 
States. 

"It  thus  ha])pens  that  persons  who  have  never  resided  within  the 
United  States  have  been  enabled  to  i)ut  forward  a  pretension  to  the 
protection  of  the  United  States  against  the  claim  to  military  service  of 
the  Government  under  whose  protection  they  were  born  and  have  been 
reared.  In  some  cases  even  naturalized  citizens  of  the  United  States 
Lave  returned  to  the  laud  of  their  birth,  with  intent  to  remain  there, 
and  their  children,  the  issue  of  a  marriage  contracted  there  after  their 
return,  and  who  have  never  been  in  the  United  States,  have  laid  claim 
to  our  protection,  when  the  lapse  of  many  years  liad  imposed  upon  them 
the  duty  of  military  service  to  the  only  Government  which  had  ever 
known  them  personally. 

"  Until  the  j^ear  18G8  it  was  left  embarrassed  by  conflicting  opinions 
of  courts  and  of  jurists  to  determine  bow  far  the  doctrine  of  perpetual 
allegiance  derived  from  our  former  colonial  relations  with  Great  Britain 
"was  applicable  to  American  citizens.  Congress  then  wisely  swept  these 
doubts  away  by  enacting  that  'any  declaration,  instruction,  opinion, 
order,  or  decision  of  any  officer  of  this  Government  which  denies,  re- 
stricts, impairs,  or  questions  the  right  of  exi)atriation,  is  inconsistent 
with  the  fundamental  principles  of  this  Government.'  But  Congress 
did  not  indicate  in  that  statute,  nor  has  it  since  done  so,  what  acts  are 
deemed  to  work  expatriation.  For  my  own  guidance  in  determining 
such  questions,  I  required  (under  the  provisions  of  the  Constitution) 
the  opinion  in  writing  of  the  principal  oflBcer  in  each  of  the  Executive 
Departments  upon  certain  questions  relating  to  this  subject.  The  result 
satisfies  me  that  further  legislation  has  become  necessary.  I  therefore 
commend  the  subject  to  the  careful  consideration  of  Congress,  and  I 
transmit  herewith  copies  of  the  several  opinions  of  the  principal  officers 
of  the  executive  department,  together  with  other  correspondence  and 
pertinent  information  on  tlie  same  subject. 

"The  United  States,  who  led  the  way  in  the  overthrow  of  the  feudal 
doctrine  of  perpetual  allegiance,  are  among  the  last  to  indicate  how 
their  own  citizens  may  elect  another  nationality.  The  X)apcrs  submitted 
312 


CHAP.  VII.]  RIGHT    OF    EXPATRIATION.  [§  171. 

herewith  iudicate  Avhat  is  iiecessarj'  to  place  us  on  a  par  with  other 
leading  nations  in  liberality  of  legislation  on  this  international  question. 
We  have  already  in  our  treaties  assented  to  the  principles  which  would 
need  to  be  embodied  in  laws  intended  to  accomplish  such  results.  We 
have  agreed  that  citizens  of  the  United  States  may  cease  to  be  citizens, 
and  may  voluntarily  render  allegiance  to  other  powers.  We  have 
agreed  that  residence  in  a  foreign  land,  without  intent  to  return,  shall 
of  itself  work  expatriation.  We  have  agreed  in  some  instances  upon 
the  length  of  time  necessary  for  such  continued  residence  to  work  a  pre- 
sumption of  such  intent." 

President  Grant,  Fifth  Annual  Message,  1873.    See  infra,  ^^  l7Gff. 

"  I  have  again  to  call  the  attention  of  Congress  to  the  unsatisfactory 
condition  of  the  existing  laws  with  reference  to  expatriation  and  the 
election  of  nationality.  Formerly,  amid  conflicting  opinions  and  decis- 
ions, it  was  difficult  to  exactly  determine  how  far  the  doctrine  of  per- 
petual allegiance  was  applicable  to  citizens  of  the  United  States.  Con- 
gress, by  the  act  of  the  27th  of  July,  18GS,  asserted  the  abstract  right 
of  expatriation  as  a  fundamental  principle  of  this  Government.  I^Tot- 
withstandiug  such  assertion,  and  the  frequent  application  of  the  princi- 
ple, no  legislation  has  been  had  definiug  what  acts  or  formalities  shall 
work  expatriatioD,  or  when  a  citizen  shall  be  deemed  to  have  renounced 
or  to  have  lost  his  citizenship.  The  importance  of  such  a  definition  is 
obvious." 

President  Grant,  Sixth  Annual  Message,  1874.     See  infra,  ^^^  176^. 

"The  individual  right  of  expatriation  being  admitted,  the  correlative 
right  of  the  State  to  determine  what  acts  are  to  be  taken  as  evidence 
of  such  expatriation  necessarily  follows — it  is  a  necessary  and  inevita- 
ble corollary." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  June  28,  1875.    MSS.  Inst.,  Germ. 

"  I  have  to  observe  upon  the  subject  that  the  IJussian  Government 
does  not  admit  the  right  of  expatriation,  but  holds  that  a  Russian  sub- 
ject who  leaves  Russia  without  the  permission  of  the  Emperor  breaks 
the  laws  of  his  country,  and  the  code  provides  punishment  therefor. 

"Russia  has  no  treaty  stipulations  with  the  United  States  which  in 
any  way  modify  the  case  so  for  as  our  citizens  are  concerned.  If,  there- 
fore, one  of  these  returns  to  the  jurisdiction  of  the  offense  which  had 
been  entirely  committed  before  his  naturalization  here,  the  American 
passport  which  will  be  given  him  on  proper  application  will  assure  the 
earnest  attention  of  our  diplomatic  and  consular  officers  in  case  there 
may  be  any  proper  opporl unity  of  service  to  liim.  The  Department 
cannot,  however,  guarantee  freedom  from  detention,  nor  protection  and 
release  in  case  charges  arc  there  prosecuted,  for  infractions  of  Russian 

31. T 


§171.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [ciLVr.  Vll, 

law  committed  by  the  iiulividual  while  a  llus-siim  subject  ami  bcforo 
any  obligation  was  acknowledged  by  him  to  the  United  States." 

Mr.  Frcliiighuyseu,  Soc.  of  State,  to  Mr.  Ilaliu-rn,  Nov.  27,  1883.    »ISS.  Doni. 

Let.     Sco  also    ^Ir.  rreliiighiiysoii   to   Mr.   AtlUr,   Apr.   M,   1883;   lo  Mr. 

rietcber,  Jnuo  30,  1881;  ibid. 
But  see  as  qualifying  this  statcnunt,  Mr.  lUaiiic  to  Mr.  Kaiulall,  Juno  8,  18S1, 

quoted  infra,  $  17'3. 

"The  Government  of  Italy  does  not  recognize  foreign  naturalization 
as  extinguishing  the  obligation, of  its  former  subjects  to  military  serv- 
ice; nor  has  that  Government  any  treaty  stipulations  with  the  United 
States  which  in  any  way  modify  the  case  so  far  as  our  own  citizens  are 
concerned.  If,  therefore,  such  native,  so  naturalized,  returns  to  the 
Jurisdiction  to  which  he  was  once  subject,  the  American  passport  which 
will  be  given  him,  on  proper  api)lication,  will  insure  the  earnest  atten- 
tion of  our  diplomatic  and  consular  officers  in  case  there  may  be  any 
proper  opportunity  of  service  to  him.  The  Department  cannot,  how- 
ever, guarantee  freedom  from  detention,  nor  protection  and  release  in 
case  charges  are  prosecuted,  based  on  conditions  preceding  the  acknowl- 
edgment of  obligation  to  the  United  States." 

Mr.  Frcliiighuyecu,  Sec.  of  State,  to  Mr.  De  Pierre,  Dec.  1(3,  1883.     MSS.  Doiii. 
Let. 

"Referring  to  your  dispatch  No.  350,  of  the  4th  of  May,  1882,  iu  rela- 
tion to  the  case  of  John  R.  McCormack,  who  was  at  that  time  a  prisoner 
in  the  jail  of  Cloumel,  county  Tipperary,  Ireland,  I  now  transmit  to  you 
a  copy  of  a  letter  of  28th  of  November  last,  addressed  by  Mr.  McCor- 
mack to  the  President,  in  which  he  invokes  the  action  of  this  Govern- 
ment to  secure  for  him  from  that  of  Great  Britain  $50,000,  as  indemnity 
for  five  months'  imprisonment  in  the  jails  of  Clonmel  and  Naas.  You 
have  in  the  records  of  your  legation  a  certificate  of  the  naturalization 
of  John  McCormack  iu  the  justices'  court  of  Troy,  Rensselaer  County, 
New  York,  on  the  25th  of  October,  18G7.  His  explanation  of  the  appa- 
rent discrepancy  in  the  name  under  which  he  goes  and  under  which  he 
was  arrested,  namely,  that  he  adopted  the  middle  initial  R,  as  repre- 
senting the  name  of  his  mother,  whose  maiden  name  was  Ryan,  in  or- 
der to  distinguish  himself  from  several  other  John  McCormacks  resid- 
ing iu  the  county  Tipperary,  three  of  whom  were  first  cousins  of  his 
own,  appears  to  bo  reasonable,  and,  assuming  that  it  was  at  the  time 
satisfactory  to  you,  I  proceed  upon  the  hypothesis  that  the  John  Mc- 
Cormack naturalized  in  Troy  in  1807  and  the  present  claimant  are 
identical. 

"From  the  statements  made  to  you  by  Mrs.  McCormack,  the  wife  of 
the  claimant,  it  appears  that  her  husband  returned  to  Ireland  in  1800, 
and  that,  with  the  exception  of  a  brief  visit  to  the  United  States  in  ]87.3, 
he  had  resided  there  from  that  time  (18G9)  up  to  the  time  of  his  arrest, 
in  the  latter  part  of  1881  or  the  beginning  of  1882.  lie  still  resides 
there,  as  his  letter  to  the  President  is  dated  from  the  'People  Oflice,' 
314 


CTTAr.  VII.]  .RIGHT    OF    EXPATRIATION.  [§  171. 

;i  local  newspaper  in  Tii)perary  of  wliicli  lie  is  ami  for  mauy  years  lias 
been  the  publisher  and  proprietor  aud  presumably  the  editor,  although 
that  fact  is  not  stated.  He  has  thus  been  for  a  period  of  over  fourteen 
years  absent  from  bis  adopted  country,  and,  moreover,  a  voluntary  resi- 
dent of  the  couutry  of  his  birth,  and  within  the  jurisdiction,  territorial, 
political,  and  judicial, of  theGovernmentof  his  original  allegiance,  under 
whose  flag  he  was  born  and  grew  to  manhood.  He  has  during  all  this 
period  been  relieved  from  his  proper  share  of  the  duties  and  obligations 
that  attach  to  and  may  be  imposed  on  a  citizen  of  the  United  States. 
He  pays  no  taxes,  either  State  or  Federal,  in  this  country,  and  does 
not  allege  that  he  has  one  dollar's  worth  of  property,  real  or  personal, 
within  the  territorial  jurisdiction  of  the  United  States ;  he  is  not  within 
the  call  or  control  of  this  Government  if  he  were  needed  for  its  defense; 
still  farther,  he  has  not  only  failed  during  all  these  years  to  express  any 
intention  of  ever  returning  to  the  United  States,  but  he  has  also  failed, 
in  his  acts,  his  general  conduct,  and  his  pursuits,  to  give  any  sign  or 
manifestation  of  such  intention  to  return  to  the  country  which  he  claims 
as  that  of  his  adoption.  lie  whites  and  talks  as  a  man  who  considers 
himself  domiciled  for  life  in  the  country  of  his  birth  and  original  allegi- 
ance. These  facts  form  verj^  strong  evidence  of  voluntary  expatriation. 
{See  infra,  ^  116,  ff.) 

"  The  Congress  of  the  United  States  has  clearly  recognized  in  its  de- 
claratory act  of  the  27th  of  July,  18G8  (Kev.  Stat.,  §  1999),  the  right 
of  voluntary  expatriation  as  an  inherent  right  of  every  American  citi- 
zen. He  maj'  denationalize  himself  at  any  time  he  sees  fit  and  the  same 
law  expressly'  forbids  any  executive  or  ministerial  officer  of  this  Gov- 
ernment from  questioning  the  right.  It  is  true,  as  you  state  in  your 
Xo.  350,  of  the  4th  of  Maj',  1882,  that  with  some  continental  powers  the 
United  States  have  concluded  conventions  on  the  subject  of  citizenshii) 
and  naturalization  by  the  terms  of  which  two  years'  voluntary  residence 
of  a  naturalized  citizen  of  the  United  States  in  the  country  of  his  origin 
is  to  be  taken  as  presumptive  evidence  of  his  renunciation  of  United 
States  allegiance  and  citizenship.  We  have,  however,  no  treaty  on  the 
subject  with  Great  Britain.  *  *  *  Thus,  an  American  citizen  may 
travel  or  reside  in  a  foreign  country  indelinitely  for  the  puri)()ses  of 
education,  health,  business,  or  of  pleasure,  and  continued  absence  from 
the  United  States,  not  accompanied  by  any  act  inconsistent  with  his 
alk'giance  to  this  country,  will  nut  cause  a  forfeiture  of  citizenship.  11", 
however,  such  citizen  removes  his  family  and  property  from  the  United 
States,  enters  into  business,  and  settles  i)ermanently  in  a  foreign  conn 
try,  neither  i^xjjressing  nor  manifesting  by  his  acts  any  intention  of  re 
turning  jiermanently  to  the  United  States,  and  if,  under  the  latter  cir- 
(;nmstances  he  wishes  the  protection  of  this  Government  against  th<' 
Government  or  laws  of  the  eonntry  in  which  he  has  residence,  it  becomes 
a  proi)er  subject  of  inqniiy  whether  he  has  not  voluntarily  aban(h)ne(l 
his  right  to  siieli  proteef  ion.     The  active  ex(Ttion  of  the  Gov<'rnment 

:5ir> 


§  171.]  ciTizENsnir,  naturalization,  and  alienage.    [rilAT.  Vlf. 

ill  the  piotoctiuii  of  a  citizen  luay  also  be  iiiiliieueed  by  the  acts  of  the 
inclividiial,  eveii  if  lie  has  not  technically  forfeited  his  citizenship.  This 
Governiuent  recognizes  neither  by  its  laws  nor  its  practice  any  distinc- 
tion  between  a  native  and  a  natnralized  citizen;  both  arealike  entitled 
to  the  protection  of  the  Government,  abroad  as  well  as  at  home,  and 
each  has  such  protection  extended  to  him  in  the  same  measure  under 
proper  conditions.     ♦     *     * 

'•  Jn  18GG  Mr.  Seward,  then  Secretary  of  State,  received  an  applica- 
1  ion  ibr  passports  from  five  brothers  resfding  in  Curagoa,  who  were  born 
in  that  island  of  parents  citizens  of  the  United  States.  The  young  men 
had  always  resided  in  Cura^oa,  had  all  their  property  there,  and  had 
'never  been  in  the  United  States.'  The  passports  were  refused  on  the 
ground  that  they  were  not  entitled  to  the  protection  of  this  Government. 
(See  infra,,  §  185.) 

"  In  1873  the  sou  of  John  Pepin,  a  Frenchmau  by  birth,  invoked  the 
protection  of  this  Government  against  the  operation  of  the  French 
militarj'  law.  The  circumstances  of  his  case  were  these:  Pepin, 
when  a  young  man,  emigrated  to  the  United  States,  was  educated  in 
Kentucky,  became  a  citizen  of  the  United  States,  resided  in  ]N^ew  Orleans 
several  years,  returned  to  France,  married  a  French  woman,  and  re- 
mained in  France  until  his  death.  Some  eight  years  after  his  return  to 
France  two  children  were  born  to  him,  one  of  them  the  son  in  question, 
who  at  the  time  of  his  application  was  eighteen  years  old.  Protection 
in  this  case  was  refused  by  my  predecessor  Mr.  Fish.  In  185G,  Mr. 
Gushing,  then  Attorney-General  of  the  United  States,  in  a  learned 
opinion  maintains  the  right  of  expatriation  and  places  the  evidence  in 
support  thereof  on  a  hypothetical  basis  in  all  respects  similar  to  the 
facts  in  McCormack's  case,  that  is,  that  when  the  individual  removes 
himself,  his  family,  and  his  property  from  the  country,  and  takes  up  his 
residence  in  a  foreign  country,  manifesting  no  intention  to  return  to  the 
United  States,  he  is  to  be  considered  as  having  renounced  his  allegiance 
to  this  Government  (8  Op.,  139);  and  Mr.  Blact,  the  successor  of  Mr. 
Gushing,  in  1857  holds  the  same  doctrine  (9  Op.,  03).  It  would  be 
superfluous  to  multiply  these  precedents.  The  action  of  the  executive 
branch  of  the  Government  has  been  uniform  on  the  subject.  When  a 
citizen  of  the  United  States  voluntarily  places  himself  within  the  juris- 
diction of  a  foreign  Government  and  subjects  himself  and  his  property 
to  its  laws,  and  when  such  citizen  afterwards  seeks  the  interference  of 
the  United  States  to  redress  some  wrong  which  he  may  have  suffered  at 
the  hands  of  such  foreign  Government,  this  Government  reserves  to 
itself  the  right  of  determining  not  only  on  the  merits  of  the  particular 
claim,  but  also  on  the  claimant's  right  to  its  protection.  It  is  for  this 
Government  to  say  whether  the  claim  shall  be  presented  or  not  to  the 
foreign  Government.  In  the  case  of  McCormack,  however,  it  is  not 
necessary  to  decide  whether  he  has  technically  lo.st  his  adopted  citizen- 
ship. He  is  at  liberty,  and  peacefully  following  his  occupation  in  the 
31 G 


CHAP.  VII.]  RIGHT    OF    EXPATRIATION.  [§  171. 

conutry  of  which  he  comijlaius,  and  to  which  he  returned  two  years 
after  his  naturalization  in  the  United  States.  He  asks  a  money  indem- 
nity for  imprisonment  suffered  under  the  laws  of  the  country  where  he 
lives,  and  asks  the  United  States  to  procure  it  for  him.  To  the  United 
States,  for  over  fourteen  years,  he  has  rendered  no  service,  he  has  paid 
no  taxes,  has  not  been  available  for  the  defense  of  his  adopted  country 
in  case  of  possible  war,  neither  has  he  been  accessible  for  jury  duty, 
and  he  has  no  personal  or  material  interests  here." 

Mr.  Frelingliiiysen,  Sec.  of  State,  to  Mr.  Lowell,  Feb.  27,  1884.  MSS.  lust.,  Gr. 
Brit.  As  to  allegiance  of  children  born  abroad  to  citizens  of  tbe  United 
States,  see  infra,  $  185.  Mr.  Fisb's  instructions  in  Pepin's  case  are  given 
infra,  § 17G. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  letter  of  the 
23d  instant  in  regard  to  the  case  of  Mr.  E.  Chryssofondis,  of  Baltimore, 
and  to  say  that  there  is  no  treaty  of  naturalization  between  the  United 
States  and  Turkey.  In  default  thereof,  however,  no  case  is  known  in 
which  the  latter  Government  has  failed  to  recognize  the  effect  of  a  valid 
naturalization  of  a  Turk  in  the  United  States  on  the  fact  being  proved. 
This  Government  makes  no  distinction  in  such  a  case  between  the  treaty 
right  of  naturalized  citizens  of  whatever  origin  and  those  of  native  citi- 
zens.   [See  section  2000,  Revised  Statutes  of  the  United  States.]" 

Mr.  Bayard,  Sec.  of  State,  to  Mr.Findlay,  Juno  29,  1885.     MSS.  Dom.  Let. 

"  I  have  received  your  I^o.  35,  of  the  24:th  ultimo,  having  especial  ref- 
erence to  the  cases  of  the  naturalized  American  citizens,  Kevork  Gu- 
ligyan  and  Bedros  Iskiyan,  whose  registration  in  the  Turkish  bureau  of 
nationality  is  refused  on  the  sole  evidence  of  their  passports,  and  em- 
bracing general  considerations  on  the  subject  of  the  right  of  expatria- 
tion. 

"  Separating  the  special  and  general  topics,  we  may  consider,  first,  the 
present  case  of  the  two  persons  mentioned,  and,  further,  the  broader 
principle  affecting  our  naturalized  citizens  of  Ottoman  nativity  who  may 
return  to  Turkey. 

"  It  would  appear  from  your  remarks  that  these  two  persons  seek  reg- 
istration as  foreigners,  in  order  to  be  qualified  to  hold  real  estate  as 
such.  '  Nor  do  I  know,'  you  say,  *  what  is  the  status  of  these  men 
now  claiming  citizenship  of  the  United  States;  but  when  native  Turks 
come  here  to  live  and  seek  to  acquire  real  estate  under  the  cai)itula- 
tion  and  protocols  which  enable  all  foreigners  to  hold  such  property 
here,  then  the  question  of  citizenship  is  at  once  mooted,  and  not  gener- 
ally until  tlien  is  the  law  of  ]8G9  evoked  as  a  touchstone  of  citizenship 
abroad.' 

"If  their  purpos:e  in  seeking  registration  as  American  citizens  was  to 
avail  themselves  of  the  right  which  Turkey  concedes  to  foreigners  under 
certain  conditions,  to  acquire  and  hold  lands  in  the  Ottoman  Empire, 
and  were  it  made  a  condition  prec(Mlent  to  such  acquisition  and  holding 
of  real  ])roperty  tliat  the  party  shall  not  have  infringed  the  Turkish  law 

317 


§171.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VII. 

coueeining  Turks  who  emigrate  aud  assume  a  foreign  allegiance  with- 
out the  i)revious  (.-onscnt  of  their  Governnieiit,  then  this  Government 
toultl  nut  well  object  to  the  parties  being  called  ujjon  to  qualify  them- 
selves for  the  enjoyment  of  the  privilege  they  seek.  Every  sovereign 
state  ])rescribes  for  itself  the  terms  and  conditions  upon  which  title  to 
lauds  within  its  jurisdiction  may  be  acquired  and  held.  If  Turkish  law 
iui poses  a  disability,  as  to  the  tenure  of  real  property,  upon  a  Turk  who 
has  become  naturalized  elsev.-hcre  without  the  previous  consent  of  liis 
Government,  then  the  question  would  be  one  of  the  subjection  to  munic- 
i])al  regulations  of  those  who  have  voluntarily  placed  themselves  there- 
under, in  a  nuitter  over  which  those  regulations  have  sovereign  and  ex- 
clusive control.  And  the  Turkish  Government  having  the  right  to  in- 
vestigate the  cases  of  persons  applying,  as  foreigners,  for  the  privilege 
of  holding  lands,  or  for  any  other  personal  privilege  over  which  munic- 
ipal laws  have  control,  it  would  seem  to  have  the  right  to  demand  of 
them  such  evidence  as  would  enable  it  to  ascertain  whether  the  apj)!! 
cants  labor  under  any  disqualification,  and,  in  event  of  their  refusal  to 
produce  such  evidence,  to  withhold  the  privilege  sought.  (See  infra^ 
§  234.) 

"  The  important  distinctions  are,  however,  to  be  borne  in  mind  be- 
tween a  muuicipal  privilege  and  a  personal  right,  and  between  with- 
holding such  privilege  and  imposing  a  penalty.  This  may  be  illustrated 
as  follows :  To  hold  real  estate,  or  to  enjoy  an^'  other  municipal  right 
controlled  by  statute,  the  applicant  may  be  called  upon  to  qualify  him- 
self. The  burden  of  proof  is  with  him.  If  he  do  not  furnish  the  re- 
quired i^roof,  he  simply  fails  to  obtain  the  privilege  sought.  But,  on  the 
other  hand,  if  the  statute  visits  the  individual  with  a  i)enalty,  the  bur- 
den of  proof  lies  upon  the  power  which  seeks  to  inflict  the  penalty;  the 
party  cannot  be  called  npou  to  criminate  himself,  and  he  must  be  pre- 
sumed to  be  innocent  until  his  crime  is  proved.  At  the  present  time  a 
striking  instance  is  found  in  the  penalties  which  are  attached  in  certain 
countries  to  the  profession  of  a  particular  creed.  The  power  to  expel  a 
Jew  from  Turkey  is  claimed,  notwithstanding  that,  as  a  foreigner,  he 
may  have  treaty  rights  of  residence.  Expulsion  being  of  the  nature  of 
a  penalty,  the  ground  of  its  application  is  to  be  proved,  like  any  other 
charge  against  the  individual. 

"  In  short,  withholding  a  privilege  may  comport  with  the  executive 
function  ;  the  imposition  of  a  penalty  is  essentially  a  judicial  function. 
Hence,  in  its  dealings  with  Turkey,  as  with  Eussia,  this  Government 
cannot  acquiesce  in  the  executive  imposition  of  a  penalty,  especially  on 
account  of  race  or  creed.  To  the  executive  of  another  country  all  our 
citizens  must  be  equal.  If  they,  being  voluntarilj'  in  a  foreign  land, 
contravene  its  muuicipal  statute,  it  is  for  the  law  to  ascertain  and  i)un- 
.  ish  their  offense.     (See  infra^  §  230.) 

"If,  therefore,  registration  in  the  bureau  of  nationality  were  sought 
by  the  two  men  in  question  merely  as  a  formality  whereby  to  qualify 
318 


CHAP.  ^11.]  RIGHT    OF   EXPATRIATION.  [§171. 

themselves  for  municipal  rights,  this  Government  could  not  object  to 
the  application  in  their  case  of  any  reasonable  test  or  mode  of  trial  to 
ascertain  whether  any  legal  disability  existed  to  prevent  the  concession 
of  the  privilege  sought. 

"  I  am  not  sure,  however,  that  the  matter  is  capable  of  consideration 
within  these  narrow  limits.  It  seems  to  trench  upon  the  broad  question 
of  the  right  of  expatriation,  and  to  involve  application  to  any  and  all 
Turks  who,  being  naturalized  in  the  United  States,  may  return  to 
Turkey. 

"  I  have  not  been  able  on  cursory  search  to  find  in  the  files  of  the 
Department  the  text  of  any  law  or  regulation  establishing  the  bureau 
of  nationality  and  defining  its  function.  I,  have,  however,  read  the  law 
of  nationality  of  January  19, 1869,  and  find  in  it  the  following  suggest- 
ive article : 

"  '  Art.  9.  Every  individual  inhabiting  Ottoman  territory  is  reputed 
an  Ottoman  subject,  and  will  be  treated  as  such  until  his  character  as 
a  foreigner  is  verified  in  a  regular  manner.' 

"From  this  I  infer  that  the  bureau  of  nationality  is  established  to 
'  verify  in  a  regular  manner '  the  alienship  of  all  foreign  inhabitants  of 
Turkey,  and  record  the  fact. 

"  As  in  the  case  of  Guligyan  and  Iskiyan,  the  bureau  has  declined  to 
admit  them  to  registry,  except  on  certain  jjroof  being  submitted,  it  may 
be  inferred  that  the  evidence  called  for  is  deemed  essential  to  the  reg- 
ular verification  of  the  foreign  status  of  the  parties,  and  this  especially 
with  reference  to  article  5  of  the  law  of  18G9,  which  reads  thus  : 

"  'Art.  5.  An  Ottoman  subject,  ac(iuiring  a  foreign  nationality  with 
the  sanction  of  the  Imperial  Government,  will  be  considered  and  treated 
as  a  foreign  subject.  If,  on  the  contrary,  he  has  obtained  foreign  nat- 
uralization without  the  previous  authorization  of  the  Imperial  Govern- 
ment, such  naturalization  will  be  considered  as  null  and  void,  and  he 
will  be  regarded  and  treated  in  every  respect  as  an  Ottoman  subject. 
No  Ottoman  subject  can  in  any  case  naturalize  himself  as  a  foreigner 
without  obtaining  a  deed  of  authority  in  virtue  of  an  imperial  irad6.' 

*'  It  would  be  desirable,  toward  a  full  understanding  of  the  subject, 
to  know  the  powers  and  functions  of  the  bureau  of  nationality,  with 
reference  to  the  fifth  and  ninth  articles  of  the  law^  of  18G9,  which  I  have 
quoted.  Is  the  bureau  merely  designed  to  aflbrd  to  aliens  an  oppor- 
tunity to  record  their  status?  Or  is  registration  therein  made  obligatory 
upon  all  aliens,  and  does  the  absence  of  an  alien's  name  from  its  books 
create,  ipso  facto,  for  the  purposes  of  Turkish  jurisdiction,  the  presump- 
tion that  he  is  an  (Jttoman  subject,  and  entail  upon  him  the  treatment 
as  such  contemplated  in  the  ninth  article  of  the  law  ? 

"  And,  further,  is  the  bureau  made  competent  to  exercise  the  quasi- 
judicial  functions  of  deciding,  under  article  5  of  the  law,  the  status  of 
a  Turk  who  may  have  ;K'(|Mirc(l  :i  fnrcign  n;it inn;ili( v  ? 

.{19 


^N  171.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

"  You  are  expected  to  euligliten  tlie  Department  on  these  points, 
sending  hither,  if  possible,  the  text  of  any  law,  decree,  or  regulation 
under  which  the  bureau  of  nationality  may  have  been  organized,  or  of 
any  rules  or  regulations  defining  its  functions  and  powers. 

"  Pending  your  report  as  to  these  points,  I  may  probably  give  some 
attention  to  the  general  principle  involved  where  there  is  international 
coutiict  of  laws  concerning  the  right  of  expatriation.  The  United  States 
hold  steadfastly  to  that  right.  The  doctrine  was  well  enunciated  in 
1SC8  in  the  words  of  Mr.  Seward,  quoted  by  you  in  your  note  of  Octo- 
ber 22  to  Said  Pasha,  and  in  even  more  precise  terms  was  incorporated 
in  an  act  of  Congress  approved  27th  July,  18G8,  now  section  1999  of  the 
Eevised  Statutes.  Under  the  law  of  18G0  the  Porte  is  understood  to 
claim  that  it  can  discriminate  between  naturalized  and  other  citizens  of 
the  United  States,  and  treat  as  Turkish  subjects  those  Turks  who  have 
been  naturalized  in  the  United  States  since  18G9  without  the  prior  con- 
sent of  the  Ottoman  Government. 

"This  Government  has  never  admitted,  and  cannot  now  admit,  the 
doctrine  for  which  the  Porte  contends.  Within  our  domestic  jurisdiction 
we  are  bound  to  uphold  and  enforce  the  right  of  expatriation,  and  our 
assertion  of  that  right  follows  to  every  foreign  country  the  alien  who 
has  become  a  citizen  of  the  United  States  by  due  process  of  law,  and 
regards  him  as  tho  equal  of  a  native-born  American  citizen.  We  may 
not  abandon  the  assertion  of  that  right  in  favor  of  the  counter  assertion 
of  the  Government  of  such  a  person's  original  allegiance. 

"  The  laws  of  the  United  States  thus  inhibiting  absolutely  any  dis- 
crimination between  their  native-born  and  naturalized  citizens,  the  same 
form  of  passport  is  prescribed  for  all  alike,  and,  under  international 
law,  is  to  be  accepted  everywhere  as  ^;m»«/ac/e  evidence  of  nationality. 
Our  duty  is  limited  to  the  positive  one  of  lawfully  certifying  the  fact  of 
American  citizenship,  and  this  Government  cannot  be  expected  to  go 
beyond  the  bounds  of  its  power  and  duty  b}'  assenting  to  such  a  conten- 
tion on  the  part  of  a  foreign  Government  as  would,  if  logically  carried 
out,  involve  the  negative  obligation  to  show  that  the  citizen  had  not  at 
some  previous  time  been  subject  to  another  power. 

"  I  am  aware  of  no  Government  whose  contention  in  this  regard  appears 
to  go  as  far  as  that  of  Turkey.  Other  sovereign  states,  it  is  true,  deny 
the  right  of  expatriation  without  prior  consent,  but  none,  to  my  knowl- 
edge, imposes  upon  every  alien  resorting  to  its  territory  the  burden  of 
disproof. 

"The  contention  of  Turkey  may  in  fact  be  found  to  go  even  further, 
and  assert  a  power  on  the  part  of  the  Porte  to  forbid  the  Government 
of  the  state  whose  citizenship  a  Turk  may  have  lawfully  acquired  from 
diplomatic  intervention  in  his  behalf,  if  the  Turkish  h>w  declares  him 
to  be  still  a  subject  of  the  Porte.  I  do  not  know  that  this  is  so;  I  trust 
it  is  not.  There  may  l)e  an  analogy,  however,  between  the  Turkish  rule 
of  registration  and  the  Mexican  law  of  matriculation.  In  Mexico,  all 
320 


CHAP.  VII.]  RIGHT    OF   EXPATRIATION.  [§  I'S^l- 

foreigners  are  required  to  deposit  their  passports  iu  the  ministry  of 
State  at  the  capital  and  take  out  a  certificate  of  matriculation,  which  is 
alone  admitted  as  evidence  of  their  rights  as  foreigners  in  that  country. 
Failing  such  registry,  they  can  assert  no  civil  or  judicial  rights  of 
alienage;  and  the  law  even  proclaims  that  no  diplomatic  intervention 
of  their  Government  will  be  admitted  in  their  behalf  under  whatever 
circumstances.  The  United  States  have  for  years  contested  this  posi 
tion,  asserting  that  no  municipal  statute  of  another  country  can  over 
throw  the  reciprocal  relations  of  a  foreigner  with  his  own  Government, 
or  impair  the  obligation  of  the  latter  to  intervene  for  his  protection  in 
case  of  wrong  or  denial  of  justice.  .  (See  infra.,  §  172  a.) 

"  But,  extreme  as  is  the  Mexican  position,  it  merely  rests  on  the  exe- 
cution of  a  formality.  It  accepts  the  passport  as  the  evidence  of  alien- 
age, and  simi)ly  substitutes,  for  municipal  effects,  one  form  of  indiscrimi- 
nating  certification  for  another. 

"The  Turkish  rule,  on  the  contrary,  rests  on  a  vital  discrimination  be- 
tween classes  of  foreigners  ;  it  imposes  a  burden  of  proof  unknown  else- 
where, and  it  assumes  not  merely  to  treat  certain  persons  as  Turks  until 
the  contrary  is  shown,  but  to  make  them  Turks. 

"  The  question  is,  in  its  broadest  aspect,  one  of  conflict  between  the 
laws  of  sovereign  equals.  The  authority  of  each  is  paramount  within 
its  own  jurisdiction.  We  recognize  expatriation  as  an  individual  right. 
Turkey,  almost  solely  among  nations,  holds  to  the  generally  abandoned 
doctrine  of  perpetual  allegiance.  Turkey  can  no  more  expect  us  to  re- 
nounce our  fundamental  doctrine  in  respect  of  our  citizens  within  her 
territory  than  she  could  expect  to  enforceherdoctiines  within  the  United 
States  by  preventing  the  naturalization  here  of  a  Turk  who  emigrates 
without  the  authorization  of  an  imperial  irade. 

"In  such  cases,  where  the  disagreement  is  fundamental,  a  conven- 
tional arrangement  is  practically  the  only  solution  to  the  difficulty, 
Founding  on  the  volition  of  the  individual  as  an  ultimate  test,  the 
United  States,  without  impairing  their  doctrine  of  the  inherent  right  of 
expatriation,  but  rather  confirming  it,  may  agree  upon  certain  condi- 
tions, according  to  which  a  person  who  has  been  naturalized  in  the 
United  States  and  returns  voluntarily  to  the  country  of  his  original 
allegiance,  there  to  remain  for  a  stated  period,  may  be  held  to  have 
created  a  presumptive  intent  to  resume  his  former  status,  and  thereby 
abandon  his  acquired  nationality.  We  recognize  the  individual  right 
to  do  so;  repatriation  is  as  equally  a  right  as  expatriation. 

"  The  United  States  have  negotiated  treaties  of  naturalization  with 
several  Governments,  including  Turkey.  The  latter,  signed  August  11, 
1874,  was  ratilied  by  the  Senate  with  amendments,  and  subsequently 
exchanged  on  *he  22d  April,  1875,  at  Constantinople.  It  subsequently 
jipiJcared,  however,  that  it  had  been  ratified  and  exchanged  by  Turkey 
under  a  niisai)prehension  of  its  true  meaning.  As  you  will  see  by 
perusal  of  Mr.  Maynard's  No.  11,  of  July  G,  1875,  the  Turkish  Govern- 
S.  Mis.  1«;l'— VOL.  II 21  321 


§  171.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAT.  VII. 

meiit  supposed  us  to  stipulate  that  two  ^ ears'  residence  in  tlic  country 
oforijjinal  alle^iiance  should  operate  to  Ibrteit  the  nationality  subse- 
quently ac(piiied  by  naturalization.  I\Ir.  Fish  held  that  the  true  mean- 
in^'  was  that  such  residence  created  a  presumption  of  intent  to  remain, 
which  might  be  rebutted,  like  any  other  presumption,  by  (Competent 
proof. 

"  Our  ])Osition  in  this  legard  has  always  been  consistent,  although  in 
other  quarters  the  misai)prehensi()n  into  which  the  Ottoman  Govern- 
ment fell  in  1875  has  been  found  to  exist.  The  reason  ot  our  position  is 
clear.  The  treat ii's  we  have  made  simply  recognize  and  define  an  exist- 
ing status  under  the  laws  of  the  two  i)arties;  they  do  not  assume  the 
legislative  or  judicial  power  of  making  and  unmaking  citizens.  They 
leave  the  laws  of  the  land  of  return  Iree  to  operate,  after  two  years,  to 
restore  the  former  allegiance.  The  treaty  does  not  restore  the  original 
status  any  more  than  it  can  forfeit  the  acquired  one,  and  perhaps  leave 
the  party  without  anj'  national  status  whatever.  ]\Ioreover,  forfeit uie 
of  status  is  essentially  a  penalty,  and  the  Porte's  understanding  of  the 
treaty  signed  in  1874  would  have  involved  the  assumption  by  the  United 
States  Executive  of  the  power  and  obligation  to  apply  such  a  penalty 
to  an  American  citizen  who,  under  certain  circumstances,  might  reside 
in  Turkey  for  more  than  two  years.  There  is  no  statutory  warrant  for 
the  exercise  of  such  a  power,  and  for  the  Executive  to  assume  it  would 
be  repugnant  to  the  principles  of  our  Government,  according  to  which 
no  man  can  be  punished  without  due  process  of  law.  Hence,  no  form 
of  international  accord  was  possible  with  Turkey  which  would  have  im- 
posed on  the  United  States  the  obligation  to  declare  the  forfeiture  of 
rights  which  an  alien  might  have  duly  acquired  under  the  naturaliza- 
tion statutes  through  the  decree  of  a  competent  court. 

"  I  refer  to  the  past  treaty  negotiation  to  correct  what  seems  to  be  a 
misai)i)rehension  on  your  part,  for  you  say  that 'the  treaty  failed  of 
coutirmation  in  the  Senate  because  of  one  inconsequential  word.'  The 
difference  between  imposing  forfeiture  of  citizenship  and  recognizing  its 
renunciation  is  not  inconsequential — it  is  vital.  And,  as  a  fact,  the 
failure  of  that  treaty  was  due  to  the  Porte's  withdrawal  of  the  ratifica- 
tion it  professed  to  have  made  and  exchanged  under  a  misapprehension 
of  the  i)urport  of  the  Senate's  amendment. 

"Of  all  our  naturalization  treaties  with  foreign  Governments,  the  most 
clearly  phrased  are  with  Great  Britain,  Austria-Hungary,  and  Den- 
mark, copies  of  which  are  herewith  sent  you.  Arti(-le  III  of  the  British 
treaty  covers  the  i)oint  under  consideration  by  providing  for  and  recog- 
nizing the  lawful  recovery  of  original  allegiance  and  renunciation  of 
that  acquired  elsewhere  by  naturalization.  So,  also,  with  Article  IV  of 
the  Austro  Hungarian  treaty.  The  latter  is,  furthermore,  noticeable  as 
providing  lor  and  defining  the  jurisdictional  rights  of  the  country  of 
original  allegiance,  when  the  native   thereof,  returning   thither  after 

322 


CHAP.  VII.]  RIGHT    OF   EXPATKIATION.  *        [§171. 

uaturalizatiou  abroad,  is  amenable  under  its  laws  for  an  offense  com- 
mitted before  bis  emigration. 

"  Mr.  Boker's  treaty  was  negotiated  five  years  after  the  Ottoman  Gov- 
ernment adopted  the  law  of  nationality,  if  that  law  was  no  obstacle 
then  to  a  naturalization  treaty  with  the  United  States,  it  should  not  be 
now.  It  should  be  your  earnest  eflbrt  to  induce  the  Porte  to  negotiate 
again  on  the  subject,  with  a  view  to  a  just  and  mutually  honorable  ac- 
commodation. You  should  make  clear  to  the  minister  for  foreign  affairs 
that  the  Executive  is  strictly  inhibited  from  acquiescing  in  the  jurisdic- 
tional claims  of  Turkey,  for  it  can  neither  recognize  nor  impose  forfeit- 
ure of  rights  acquired  by  lawful  naturalization ;  bat  that  we  stand 
ready,  by  treaty,  to  respect  any  process  whereby,  under  Turkish  law, 
duly  applied,  the  voluntary  act  of  a  naturalized  Turk  who  returns  to 
reside  in  Turkey  may  operate  as  a  renunciation  of  his  acquired  status 
and  resumption  of  original  allegiance.  The  limits  within  which  such  a 
negotiation  may  be  conducted  are  found  in  the  Americo-Turkish  treaty 
of  1874,  as  amended  by  the  Senate,  and  in  our  treaties  with  Great  Brit- 
ain and  Austria-Hungary. 

"  I  await,  as  before  stated,  your  report  on  the  function  and  powers  of 
the  bureau  of  nationality'.  Meanwhile,  this  instruction  will  make  clearer 
to  you  the  attitude  of  this  Government  on  the  general  question  of  the 
treaty  rights  of  our  citizens  in  Turkey,  whether  native  or  naturalized." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Nov.  23,  1885.  MSS.  Inst.,  Turkey  ;  For. 
Rel.,  1S85.  See  further  instructions  by  Mr.  Bayard  as  to  tlio  Turkish  "bu- 
reau of  nationality,"  infra,  ^  172. 

The  protocol  of  1874  with  Turkey  a,s  to  the  right  of  citizens  of  the  United  States 
to  hold  real  estate  in  Turkey  is  in  Brit.  Si,  For.  St.  Pap.,  1873-4,  vol.  65. 

Although  the  right  of  expatriation  was  at  one  time  denied  in  this  country 
(Williams's  case,  Whart.  St.  Tr.,  C52),  it  is  now  regarded  as  established 
in  international  law. 

Santissima  Trinidad,  7  Wheat.,  283 ;  Portier  v.  Le  Eoy,  1  Yeates  (Penn.),  371 ; 
Jansen  v.  The  Vrow  Christina  Magdalena,  Bee.  Adm.,  11,23;  suh  nom.  Tal- 
bot V.  Jansen,  3  Dall.,383. 

"  There  cannot  be  a  nation  without  a  people.  The  very  idea  of  a 
political  community,  such  as  a  nation  is,  implies  an  association  of  per- 
sons for  the  promotion  of  their  general  welfare.  Each  one  of  the  persons 
associated  becomes  a  member  of  the  nation  formed  ly  the  association. 
He  owes  it  allegiance  and  is  entitled  to  its  protection.  Allegiance  and 
l)rotection  are,  in  this  connection,  reciprocal  obligations.  The  one  is  a 
compensation  for  the  other;  allegiance  for  protection  and  protection  for 
allegiance. 

"  For  convenience  it  has  been  found  necessary  to  give  a  name  to  this 
membership.  The  object  is  to  designate  by  a  title  the  person  and  the 
relation  lie  bears  to  the  nation.  For  this  purpose  the  words  '  subject,' 
'  inhabitant,'  and   'cifizcn'  liavc  been  used,  and  the  choice  between 


§171.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VIL 

them  is  sometimes  made  to  depeiul  upon  the  form  of  Government. 
Citizen  is  now  more  commonly  employed,  however,  and  as  it  lias  been 
considered  better  suited  to  the  description  of  one  living  under  a  Repub- 
lican government,  it  was  adopted  by  nearly  all  of  the  States  upon  their 
separation  from  Great  Britain,  and  was  aiterwards  adopted  in  the 
articles  of  Confederation  and  in  the  Constitution  of  the  United  States. 
When  used  in  this  sense  it  is  understood  as  conveying  the  idea  of  mem- 
bership of  a  nation,  and  nothing  more." 

Waite,  C.  J.     Minor  r.  Happorsctt,  21  Wall.,  105,  106. 

The  doctrine  of  perpetual  allegiance  was  not  applied  by  the  British 
courts  to  persons  born  in  the  United  States  before,  and  remaining  here 
after,  the  acknowledgment  of  their  independence. 

Doe  j:.  Acklam,  2  B.  &  C,  770. 

The  United  States  recognize  the  right  of  voluntary  expatriation,  sub- 
ject to  such  limitations  as  Congress  may  impose. 
H  Op.,  139,  Cashing,  185G. 

A  citizen  of  the  United  States,  native  or  naturalized,  may  change  his 
allegiance,  provided  it  be  done  in  time  of  peace,  and  for  a  purpose  not 
directly  injurious  to  the  interests  of  the  country. 
9  Op.,  62,  Black,  1857, 

Expatriation  includes  not  only  emigration,  but  naturalization. 

9  0p.,356,Bl.ick,  1859. 

The  natural  right  of  every  free  person  who  owes  no  debts  and  is  not 
guilty  of  any  crime  to  leave  the  country  of  his  birth,  in  good  faith  and 
for  an  honest  purpose,  the  privilege  of  throwing  off  his  natural  allegi- 
ance and  substituting  another  in  its  place,  the  general  right,  in  a  word, 
of  exi)atriation,  is  incontestible. 
Jbid. 

Questions  as  to  citizenship  are  determined  by  municipal  law  in  sub- 
ordination to  the  law  of  nations. 

12  Op.,  319,  Stanbery,  1867. 

Under  the  treaty  of  September  20,  1870,  the  citizens  of  the  United 
States  and  of  Austria  have,  reciprocally,  the  right  of  expatriation  by 
an  uninterrupted  residence  of  five  years  and  naturalization.  When  a 
citizen  of  one  of  these  countries  voluntarily  assumes  in  the  manner 
prescribed  the  character  of  a  citizen  of  the  other,  he  cannot  cast  it  off  at 
pleasure  so  long  as  he  remains  within  the  jurisdiction  of  the  latter 
country. 

■  14  Op.,  154,  Williams,  1872. 

If  a  citizen  of  the  United  States  emigrates  to  a  foreign  country,  and 
there,  in  the  mode  provided  by  its  laws,  renounces  his  American  citi- 
zenship with  a  bona  fide  intent  of  becoming  a  citizen  of  such  country, 

324 


OnAP.  VII.]  FOREIGN    RESTRICTIONS.  [§172. 

his  course  should  be  regarded  by  our  Government  as  an  act  of  expatria- 
tion. 

14  Op.,  295,  Williams,  1873. 

The  declaration  in  the  act  of  July  27, 18G8,  chap.  249,  that  the  right 
of  expatriation  is  "  a  natural  and  inherent  right  of  all  people,"  applies 
to  citizens  of  the  United  States  as  well  as  to  those  of  other  countries. 

14  Op.,  295,  Williams,  1873. 

For  modern  English  doctrine  recognizing  expatriation,  see  4  Phill.  Int.  Law 

(2ded.),195. 
The  terms  of  naturalization  in  modern  states  are  given  in  detail  in  Calvo  droit 

int.  (3ded.),  vol.  2,  lib.  xi. 

(2)  Conditions  imposed  dy  Government  of  okigin  have  no  extraterritorial 

FOHCE. 

§  172. 

"Your  dispatch  No.  218,  of  the  18th  ultimo,  has  been  received.  It 
relates  to  the  detention  by  the  Swiss  local  authorities  of  property  in 
Switzerland  claimed  by  natives  of  that  country  naturalized  in  the  United 
States.  The  reasons  assigned  for  that  detention  are  believed  to  be  so 
insufiQcient  practically,  morally,  and  legally  that  it  is  hoped  the  Federal 
Government  of  that  country  will  lose  no  time  in  applying  its  authority 
or  influence  towards  redressing  the  grievance. 

"It  is  noticed  with  regret  that  the  Swiss  local  authorities,  at  least,  are 
disposed  to  maintain  the  doctrine  of  perpetual  allegiance  by  denying 
the  right  of  a  native  of  that  country  to  become  naturalized  elsewhere 
without  their  consent. 

"This  pretension  has  always  been  regarded  here  as  extravagant,  and 
as  such  has  been  resisted,  so  that  several  of  the  most  important  Euro- 
pean countries  with  monarchical  governments,  which  were  most  stren- 
uous in  supporting  it,  have  receded  from  their  claims,  and  have  con- 
cluded naturalization  treaties  with  the  United  States.  Switzerland  as 
yet  has  no  such  treaty,  but  the  convention  of  1850  between  the  United 
States  and  that  country  contains  stipulations  which  seem  applicable  to 
the  present  case  and  adequate  for  disposing  of  it  contrary  to  the  views 
held  in  that  quarter. 

"It  appears  from  your  dispatch  that  one  of  the  claims  of  the  com- 
munal authorities  is  that  they  can  recognize  no  native  of  Switzerland 
as  a  citizen  of  the  United  States  who  shall  not  have  obtained  their  con- 
sent to  his  naturalization.  This  pretension  is  in  direct  conflict  with  the 
fourth  article  of  the  treaty,  which  says  that  in  order  to  establish  their 
character  as  citizens  of  the  United  States  of  America,  persons  belong- 
ing to  that  country  shall  be  bearers  of  passports  certifying  their  nation- 
ality. li\  therefore,  the  nationality  of  any  Swiss  naturalized  here,  who 
may  visit  his  native  country  with  such  passport,  shall  there  be  ques- 
tioned, lliat  act  must  be  looked  ui)on  as  a  flagrant  violation  of  the  treaty, 
whicli  could  not  be.  ac(inieHced  in.     (See  svpra,  §  1(5.').) 

a2C 


§172.]    CITIZENSHIP,  NATIIK'ALIZATION,  AND  ALIENAGE.    [cilAP.  YIT. 

''Again,  the  filth  article  stipulates  iu  substauce  tbat  the  heirs  of  a 
Swiss  (lecedeut,  being  citizens  of  the  United  States,  whether  native  or 
naturalized,  shall  inherit  and  dispose  of  the  property  of  such  decedent 
at  their  ])leasnre. 

"An  authenticated  copy  of  the  judgment  of  the  court  which  may  have 
naturalized  a  Swiss  citizen  must  be  regarded  as  conclusive  proof  of  that 
act  in  regard  to  all  such  naturalized  Swiss  who  may  not  visit  their  native 
country. 

"As  explicit  abjuration  of  allegiance  to  his  native  country  is  by  law- 
required  of  every  foreigner  naturalized  here,  the  fact  of  such  abjuration 
is  mentioned  in  the  record.  It  is  presumed,  therefore,  that  when  a  dul^' 
attested  copy  of  such  record  is  presented  to  the  authorities  in  Switzer- 
land, the  sufficiency^  of  the  proof  which  it  contains  will  be  acknowledged 
without  hesitation. 

"You  intimate  that  the  supreme  court  of  the  Confederation  might 
decide  the  question  conformably  to  the  views  entertained  here,  and 
suggest  that  a  test  case  be  prosecuted  for  the  purpose  of  obtaining 
their  opiniou.  This  course  it  would  be  difficult  and  inconvenient  for 
this  Government  to  adopt,  but  it  might  be  the  most  eligible  for  a  claim- 
ant to  sufficient  i^roperty  in  that  countrj^  to  incur  the  hazard  and  ex- 
pense which  would  attend  it." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fisb,  Nov.  12,  1879.    MSS.  Inst.,  Swifz.;  For. 
Rel.,  1879. 

"It  must  not  be  forgotten  that,  in  the  absence  of  a  specific  treaty  of 
naturalization,  the  personal  status  of  a  native-born  American  citizen, 
and  of  a  Russian  who  has  been  naturalized  in  the  United  States,  may 
be  very  different  iu  Eussia.  The  former  has  clearly  never  incurred 
any  obligation  under  the  laws  of  that  country,  and  incurs  none  by 
going  thither  other  than  that  of  peaceable  observance  of  the  laws  of 
the  land.  The  latter,  on  the  contrary,  while  yet  a  Russian,  may,  under 
Russian  laws,  have  contracted  personal  obligations  towards  his  native 
land,  which  under  those  laws  may  not  be  extinguished  by  the  fact 
of  leaving  the  country  and  acquiring  status  elsewhere  as  a  citizen  or 
subject  of  another  country.  In  such  case,  if  an  individual  so  circum- 
stanced with  respect  to  Russian  law  were  to  return  to  that  country 
and  voluntarily  put  himself  within  its  jurisdiction,  it  is  probable  that 
he  would  be  held  to  the  fulfillment  of  that  personal  obligation  in  like 
manner  as  he  would  be  held  to  discharge  any  other  personal  indebted- 
ness cognizable  under  Russian  law.  This  is  the  case  in  other  countries, 
especially  in  Italy,  where  cases  of  this  character  have  arisen  affecting 
Italians  naturalized  abroad,  who  have  been  held  to  the  completion  of 
their  personal  obligation  of  military  service,  without  redress  being 
practicable." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Croustiuc,  Mar.  17,  1880.     MSS.  Dom.  Let. 

320 


CHAr.  VII.]  FOREIGN    liESTRICTIONS.  [§172. 

"  I  do  uot  uuderstiiud  that  a  Eussiau,  naturalized  abroad  aud  return- 
ing to  Eussia,  is  ijyso  facto  claimed  as  a  Russian.  He  may,  in  deter- 
minate cases,  be  held  liable  to  military  duty,  or  to  punishment  for  un- 
fulfillment  of  service  due  when  he  emigrated.  With  regard  to  such 
cases  the  Department  abstains  from  any  opinion  in  advance  of  an 
actual  instance  presenting  itself  for  consideration.  If  a  case  arises 
every  possible  step  is  taken  to  defend  bona  fide  American  citizenship. 

"  Generally,  however,  a  law-abiding  naturalized  Russian,  returning 
to  Russia  aud  there  obeying  the  laws  and  justifying  his  American 
citizenship  in  good  fiiith,  goes  unmolested  during  any  reasonable  period 
of  sojourn  unless  actually  liable  to  military  duty  or  penalty." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Randall,  June  8,  1881.  MSS.  Dom.  Let.  See, 
however,  as  to  Russia,  instructions  of  Mr.  Frelingbuysen,  quoted  supra,  § 
171. 

"  While  this  Government  does  not  for  a  moment  question  the  right  of 
that  of  Switzerland  to  attach  such  conditions  as  it  may  deem  projier  to 
the  emigration  of  its  citizens,  and  while  it  also  admits  that  an  American 
citizen  who,  while  in  Switzerland,  commits  an  offense  against  the  crim- 
inal laws  of  that  country,  may  properly  be  held  to  answer  for  such  of- 
fense before  the  courts  of  Switzerland,  it  cannot  give  its  assent  to  a 
doctrine  so  fraught  with  danger  to  the  rights  of  American  citizens  as 
that  which  holds  that  a  citizen  of  the  United  States  of  Swiss  nativity 
may  be  tried  before  the  criminal  courts  of  Switzerland  for  acts  done  or 
committed  within  the  territories  of  the  United  States.  That  the  mat- 
ter for  which  Mr.  Meyer  was  held  criminally  liable  in  Zurich,  is  not  only 
not  criminal  in  this  country,  but  is  authorized  by  its  laws,  simply  ag- 
gravates this  particular  case. 

"  Had  his  act  constituted  an  offense  against  the  criminal  code  of 
the  United  States  or  against  the  laws  of  the  State  of  New  York, 
this  Government  would  still  hold  that  he  was  amenable  for  suchoflFense 
in  the  courts  of  the  United  States,  or  of  the  State  of  Kew  York,  as  the 
case  might  be,  and  in  these  courts  only. 

"The  naturalization  of  an  alien  in  the  United  States  is  the  voluntary 
act  of  the  party  himself.  Under  the  laws  of  the  United  States,  the 
consent  of  Government  of  the  country  of  his  origin  is  uot  made  a  con- 
dition of  his  admission  to  citizenshij),  and  when  he  has  once  attained  (he 
character  of  a  citizen  of  the  United  States,  it  is  held  by  the  Govern- 
ment and  laws  of  the  United  States  to  adhere  to  him  with  its  proper 
rights  and  privileges,  not  only  in  the  United  States,  but  in  any  foreign 
country  in  which  he  may  be,  not  excepting  the  country  of  his  nativity' 
or  origin." 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Cramer,  Dec.  19, 1882.  MSS.  lust., 
Switz.     See  further,  same  to  same,  .July  28,  1883;  ibid. 

"This  I)ei)artment  has  rcccivtMl  a  dispatch  of  (lie  -Olli  nit.,  IVoiii 
(he  United  States  consul  at  Beirut,  stating  that  the  Turkish  bureau  of 

327 


§  172.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [cHAP.  VIT. 

iiatiouality  at  Constantinople  had  recently  declined  to  certify  to  the 
American  citizenship  of  Messrs.  K.  and  B.,  on  the  ground  that  their 
jiassports  did  not  show  that  they  left  the  Ottoman  Empire  prior  to  the 
l>romulgation  of  the  law  of  18G9,  forbidding  Turkish  subjects  to  leave 
the  country  without  permission  to  become  naturalized  in  another  coun- 
try. The  refusal  referred  to,  for  the  reason  alleged,  seems  so  extraordi- 
nary at  least,  that  you  will  protest  against  it  and  endeavor  to  have  it 
corrected  so  far  as  it  may  have  been  or  may  be  applied  to  the  persons 
above  referred  to. 

"  Passports  are  issued  by  this  Department  to  naturalized  citizens  upon 
the  production  of  the  certificate  of  naturalization.  There  is  no  law  of 
the  United  States  requiring  a  passport  to  state  when  a  naturalized  cit- 
izen left  the  country  of  his  birth,  or  to  embody  that  statement  in  the 
passport.  It  has  not  been  the  practice  of  this  Department  to  insert 
such  a  statement  in  the  passports  issued  to  former  Turkish  subjects  or 
to  any  other  naturalized  citizens.  A  dififerent  course  might  imply  that 
the  right  of  the  foreign  Government  to  participate  in  or  to  make  the 
naturalization  of  its  subjects  conditional  was  acknowledged  here.  This 
it  has  never  been  and  probably  will  never  be. 

''  The  Turkish  law  referred  to  also  seems  to  be  defective  or  ambigu- 
ous, inasmuch  as  it  assumes  that  every  Ottoman  subject  who  leaves  his 
native  country  has  an  intention  to  become  naturalized  elsewhere.  If 
this  be  the  meaning  of  the  law,  it  must  be  contrary  to  facts  of  daily 
occurrence  in  that  Empire.  It  may  be  that  Turks,  in  proportion  to 
their  number,  do  not  travel  as  much  as  inhabitants  of  other  countries. 
Still,  it  is  believed  that  comparatively  few  of  those  who  do  go  abroad 
leave  home  for  the  purpose  of  changing  their  nationality." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Emmet,  May  29,  1835.     MSS.  lust.,  Turkey; 
For.  Eel.,  1885. 

On  the  assumption  that  by  the  Turkish  law  of  18G9  the  naturaliza- 
tion of  a  Turkish  subject  abroad  is  not  valid  in  Turkey  unless  preceded 
by  a  permit  from  the  Turkish  Government,  the  position  has  been  taken 
in  Turkey  that  such  naturalized  Turk  is  debarred  from  inheriting  from 
Turkish  subjects. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Arakelyan,  Aug.  17,  1885.     MSS.  Dom.  Let. 

The  defect,  however,  may  be  cured  upon  a  petition  presented  through 
the  minister  of  Turkey  at  "Washington. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Findlay,  Aug.  17, 1885.    MSS.  Dora.  Let.     See 
supra,  §  171. 

"  The  United  States  hold  steadfastly  to  that  right  [expatriation].  The 
doctrine  was  well  enunciated  in  18G8  in  the  words  of  Mr.  Seward,  quoted 
by  you  in  your  note  of  October  22  to  Said  Pasha,  and,  in  even  more  pre- 
cise terms,  was  incorporated  in  an  act  of  Congress  approved  27th  July, 
186S,  now  section  1999  of  the  Revised  Statutes. 
328 


CHAP.  VII.'J  FOREIGN    RESTRICTIONS.  [§  112(1 

''  Uuder  tbe  law  of  18G9  the  Porte  is  imderstood  to  claim  that  it  cau 
discriminate  between  naturalized  and  other  citizens  of  tbe  United 
States,  and  treat  as  Turkish  subjects  those  Turks  who  have  been  natu- 
ralized in  the  United  States  since  1869  without  tbe  prior  consent  of  the 
Ottoman  Government. 

"  This  Government  has  nev^er  admitted,  and  cannot  now  admit,  tbe 
doctrine  for  which  tbe  Porte  contends.  Within  our  domestic  jurisdic 
tion  we  are  bound  to  uphold  and  enforce  tbe  right  of  expatriation,  and 
our  assertion  of  that  right  follows  to  every  foreign  country  tbe  alien 
who  has  become  a  citizen  of  the  United  States  by  due  process  of  law, 
and  regards  him  as  the  equal  of  a  native-born  American  citizen." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Nov.  28,  188r..     MSS.  lust.,  Turkey ; 
quoted  more  fully,  supra,  $  171. 

(3)  NOU   CAX  THE  RIGHTS  OP  FOREIGNERS  BR  LIMITED  BY  COUNTRY  OV  TEMPORARY 
RESIDENCE  REQUIRING  MATRICULATION  OR  REGISTRY. 

§  172a. 

"  This  Department  has  no  doubt  that  the  object  and  the  effect  of  the 
ninth  article  of  the  treaty  of  1831  was  to  exempt  the  citizens  of  one 
party  from  compulsory  service  in  the  military  or  naval  service  of  the 
other.  Supposing  the  fact  of  citizenship  in  any  particular  case  to  be 
acknowledged,  the  exemption  must  be  insisted  upon,  including  also  any 
tax  which  may  be  imposed  in  lieu  of  that  service.  The  question  then 
occurs  what  proof  of  citizenship  is  either  Government  warranted  in 
requiring.  Tbe  treaty  being  silent  on  this  point,  it  is  left  for  regulation 
by  the  municipal  laws  of  the  parties,  which  must  be  acquiesced  in  un- 
less their  purpose  and  effect  should  be  to  thwart  a  plain  stipulation  of 
the  treaty.  The  Mexican  law  requiring  the  matriculation  or  registra- 
tion of  foreigners  can  scarcely  be  said  to  be  of  this  character.  Citizen- 
ship is  a  fact  which,  like  others,  maybe  proved  by  oral  or  documentary 
testimony.  If  the  latter  should  be  offered,  the  highest  of  this  character 
would  be  a  passport  from  the  Mexican  foreign  office  or  from  this  De- 
l)artment.  A  i^assport  is  virtually  a  mere  certificate  of  citizenship.  It 
implies  that  the  Department  from  which  it  may  emanate  has  itself  con- 
sidered the  evidence  of  the  fact  which  it  proposes  to  establish,  and  has 
decided  accordingly.  A  passport  nniy  also  issue  from  the  legation,  and 
may  be  presumed  to  be  granted  upon  similar  considerations. 

"Upon  the  whole  the  Department  is  inclined  to  tbe  opinion  that  the 
requirement  of  matriculation,  as  it  is  called  by  the  Mexican  Govern- 
ment, is  not  illegal,  nor,  under  tbe  circumstances,  undulj'^  oppressive  in 
form,  and  cannot  i)ropcrly  be  protested  against  generally  or  in  any  par- 
ticular case,  uides.s  unusual  or  unattainable  proof  of  citizensbip  should 
be  required." 

Mr.  EiHli,  Sec.  of  State,  to  Mi-.  Foster,  Oct.  151,  187:1.     MSS.  lust.,  MeX. 

329 


§  172a.]  CITlZENSIIir,  NATURALIZATION,  AND  ALIENAGE.    [ciIAP.  VIL 

"  You  will  please  say  to  the  minister  for  foreign  aflaiis  tbat  if  tlie 
intervention  of  the  United  States  in  favor  of  Americans  imprisoned  is 
refused  only  because  they  are  not  matriculated,  that  the  President  ex- 
pects such  citizens  to  be  now  allowed  to  matriculate.  And  you  are 
authorized  to  advance  the  requisite  funds.  Please  send  the  names  of 
prisoners  and  why  imprisoned." 

Mr.  Frcliughuysen,  Sec.  of  State,  to  Mr.  Morgan,  Apr.  12,  1882 ;  ihid. 

"  I  have  received  and  considered  your  dispatch  No.  447,  of  the  17th 
ultimo,  transmitting  copies  of  the  correspondence  which,  in  i)ursuanco 
of  the  Department's  instruction  ^o.  189,  of  10th  November  last,  you 
opened  with  the  JMexican  foreign  secretary  in  regard  to  the  murder  of 
Mr.  and  Mrs.  Thomas  Gartrell,  near  the  city  ot  Durango. 

*'  I  cannot  but  express  tho  regret  I  feel  on  observing  Mr.  Mariscal's 
statement  that,  if  your  representation  of  the  facts  is  the  omen  of  lecla- 
mation,  the  Mexican  Government  considers  itself  compelled  at  once 
to  declare  through  him  that  it  is  not  possible  to  accept  your  interven- 
tion, *  *  *  because  it  does  not  appear  on  the  register  of  matricu- 
lation under  Mr.  Mariscal's  charge  that  Mr.  Gartrell  and  his  wife  are 
citizens  of  the  United  States. 

"  This  question  of  the  prior  necessity  of  matriculation,  as  an  alien  resi- 
dent of  Mexico  under  ]\Iexican  law  before  a  foreigner  can  be  entitled, 
in  Mexico,  to  the  assertion  of  the  rights  which  international  law  as- 
cribes to  all  foreigners,  is  one  of  the  few  questions  between  the  two  coun- 
tries which  remain  pending  in  an  unsatisfactory  condition. 

"  The  records  of  your  legation  show  that  the  subject  has  been  the  oc- 
casion of  discussion  between  the  two  Governments  for  many  years.  As 
you  have  doubtless  familiarized  yourself  with  the  correspondence,  I 
need  refer  to  it  no  fariher  than  to  say  that  the  divergence  as  to  the  man- 
ner in  which  the  fact  of  matriculation  was  to  be  accomplished  has  been 
settled  on  the  acceptance  by  the  Mexican  Government  of  the  presenta- 
tion of  the  visaed  passport  as  evidence  of  foreign  citizenship,  and  that 
the  points  remaining  open  concern  only  the  rights  which  accrue  to  for- 
eigners in  virtue  of  such  i^assport,  or  which  may  be  denied  to  them  in 
the  absence  of  such  further  formality  as  is  now  insisted  upon. 

♦'  This  Government  is  not  disposed  to  question  the  convenience  of  for- 
mal matriculation  as  evidencing  the  right  of  foreigners  resident  in  Mex- 
ico to  certain  civil  and  domiciliary  rights  prescribed  under  the  Mexican 
law.  But  it  does  question  the  claim  of  Mexico  to  debar  from  the  pro- 
tection of  their  own  Government  citizens  of  the  United  States  who  may 
be  temporarily  in  ^lexico  and  who  have  not  matriculated. 

"  We  hold,  under  the  general  principles  of  international  law,  that  the 
right  of  an  American  citizen  to  claim  the  protection  of  his  own  Govern- 
ment while  in  a  foreign  land,  and  the  duty  of  this  Government  to  exer- 
cise such  protection,  are  reciprocal,  and  are  inherent  in  the  allegiance 
of  the  citizen  under  the  constitution  of  his  own  land,  and  that,  inasmuch 
330 


CUAP.  VII.]  MEXICAN    "MATRICULATION."  |  §  172rt. 

as  this  reciprocal  right  ou  the  part  of  tlie  citizen  aud  duty  ou  the  part 
of  his  Goverument  is  not  created  by  the  laws  of  any  foreign  country,  it 
cannot  ou  the  other  hand  bo  denied  by  the  municipal  law  of  a  foreign 
state.  Holding  thus,  it  is  impossible  for  this  Government  to  accept  the 
proposition  that  its  right  to  intervene  for  the  protection  of  one  of  its 
citizens  in  Mexico  can  only  begin  with,  and  be  created  by  the  matricu- 
lation of  such  a  citizen  as  a  foreign  sojourner  in  Mexico,  and  can  only 
exist  and  be  exercised  with  respect  to  the  redress  of  wrongs  which  such 
a  citizen  may  suffer  there  after  his  name  shall  have  been  inscribed  on 
the  books  of  the  foreign  office  in  the  city  of  Mexico. 

"  This  last  statement  of  the  question  is  not  a  hypothetical  one  5  it  has 
become  expressly  enunciated  by  the  Mexican  foreign  secretary  in  the 
case  of  your  application  for  the  matriculation  of  American  citizens  in 
whose  behalf  you  had  intervened. 

"  Your  own  legal  knowledge  will  show  you  that  serious  grounds  exist 
in  practice  for  questioning  the  Mexican  contention  on  this  point,  even 
were  its  justice  admitted,  which  it  is  not.  For  an  American,  say,  for  in- 
stance, a  shipmaster  in  port,  charged  with  some  technical  offense  against 
the  revenue,  or  arrested  through  the  arbitrary  action  of  an  ignorant  of- 
ficial, might,  although  he  had  no  intention  of  sojourning  in  Mexico,  and 
when  it  would  not  be  claimed  that  there  was  any  necessity  for  matricu- 
lation, be  thus  brought  within  Mexican  jurisdiction  under  circumstances 
calling  for  the  diplomatic  intervention  of  his  national  protector.  Or 
again,  an  American  citizen  when  crossing  the  frontier  on  a  merely  tem- 
porary errand  might  be  held  to  military  service  in  the  Mexican  army 
and  subjected  to  detention  and  personal  loss  and  damage,  for  which, 
under  the  decision  of  Mr.  Mariscal  he  could  not  claim  relief  unless  armed 
with  a  certificate  of  matriculation  obtained  before  the  act  complained  of. 
And  again,  the  property  rights  of  an  American  might  possibly  be  as- 
sailed in  Mexico  while  he  himself  was  not  within  Mexican  jurisdiction. 
I  have  presented  hypothetical  cases.  Others  will  occur  to  you  wherein 
the  rigid  application  of  the  doctrine  enunciated  by  Mr.  Mariscal  would 
ojierate  to  bar  all  intervention  for  protection  or  redress. 

"  I  repeat,  the  status  of  a  foreigner  is,  under  international  law,  inher-' 
ent,  and  neither  created  nor  destroyed  by  Mexican  law.  The  evidence 
of  the  foreign  status  of  an  individual  consists  in  the  facts  as  they  exist, 
or  by  the  authentic  certification  of  his  own  Government  as  in  the  form 
of  a  passport ;  it  does  not  originate  in  compliance  with  a  Mexican  munic- 
cipal  statute. 

"  I  desire  that  when  you  have  familiarized  yourself  with  the  subject 
in  its  legal  and  international  aspects,  and  in  view  of  the  precedents  fur- 
ni.shcd  by  your  legation  files,  you  will  present  the  question  earnestly  to 
the  attention  of  Mr.  Mariscal.  In  doing  so,  while  your  representations 
will,  of  course,  be  temperate  and  courteous,  you  should  make  it  api)ar- 
cntthat  the  United  States  cannot  recognize  the  fact  of  matriculatiou 

331 


§  ll2a.'\  CITJZENSIIIP,  NATlIKWI-l/ATION,  ANJ)  ALIENAGE.    |('1IA1'.  VH. 

as  controlling'  the  right  of  a  citizen  of  the  United  States  to  a.sk  the  in- 
tervention of  this  Government  in  case  of  need. 

"As  the  treaties  between  the  two  countries  which  express  the  recip- 
rocal rights  and  privileges  of  their  citizens  in  the  territories  of  the  other 
have  been  terminated  recently  by  the  act  of  Mexico,  your  arguments 
must  necessarily  rest  on  the  principles  of  international  law.  In  fact, 
the  absence  of  specific  treaty  stipulations  is  quite  immaterial;  treaties 
do  not  create  the  personal  rights  of  men,  they  may  recognize  their  exist- 
ence and  define  their  exercise  within  certain  practical  and  convenient 
bounds. 

"  You  should,  further,  be  careful  to  dissociate  this  important  subject 
from  the  specific  cas-3  of  the  Gartrell8,or  any  particular  reclamation  now 
pending.  Such  cases  rest  on  their  merits.  This  matriculation  question 
rests  on  a  higher  plane,  it  concerns  our  right  to  protect  our  citizens  by 
presenting  the  facts  in  their  cases  and  asking  consideration  thereof  ac- 
cording to  l^ho  recognized  principles  of  justice  and  equity." 

Same  to  same,  July  "^4,  1882. ;  ibid;  For.  Kel.,  1882. 

"  Your  dispatch  No.  820,  of  the  2d  instant,  has  been  received.  It 
presents  the  case  of  Howard  C.  Walker,  an  American  citizen,  arrested 
and  imprisoned  at  Minatitlan,  the  19th  of  March  last,  charged  with  hav- 
ing stolen  some  lumber. 

"  Mr.  Walker's  statement  to  you  is  that  for  the  past  two  years  he  has 
been  shipping  or  river  clerk  for  Mr.  E.  II.  Leetch,  of  Minatitlan,  the 
heaviest  mahogany  merchant  in  Mexico,  and  that  in  pursuance  of  his. 
Walker's,  legitimate  business,  he  shipped  on  board  the  bark  Circas- 
sian, together  with  other  timber,  some  hundred  and  odd  logs  of  ma- 
hogany, which,  as  afterward  learned,  were  claimed  by  one  Jos(5  K. 
Teran,  but  all  bearing  the  brands  of  Mr.  Leetch,  and  undoubtedly  his 
property.  '  The  ship,'  continued  Mr.  Walker,  '  has  been  discharged  by 
order  of  the  tribunal,  and  not  one  log  was  found  with  the  mark  claimed 
by  said  Teran,  yet,  from  pure  maliciousness,  I  (Walker)  am  still  held  a 
prisoner.' 

"  You  accordingly  presented  Mr.  Walker's  case  to  the  Mexican  Gov- 
ernment, asking  for  a  speedy  investigation  thereof.  Mr.  Fernandez  ad- 
vises you,  in  reply,  that,  as  a  matter  of  courtesy,  he  will  obtain  infor- 
mation upon  the  subject,  but  admonishes  you  that,  Mr.  Walker  not 
having  been  registered  at  the  foreign  office,  diplomatic  intervention  in 
his  (Walker's)  behalf  will  not  in  future  be  admitted. 

"  Like  yourself,  I  confess  to  not  a  little  surprise  that  the  Mexican  Gov- 
ernment should  have  again  resorted  to  so  untenable  a  ground  as  that 
herein  advanced,  especially,  too,  in  view  of  the  lact,  which  you  state, 
that  since  your  note  to  Mr.  Mariscal  of  September  25,  1882,  based  upon 
my  instruction  of  July  24,  1882,  Xo.  298,  wherein  the  question  of  matricu- 
lation was  fully  discussed,  you  have  had  occasion  to  repeatedly  call  the 
attention  of  the  Mexican  Government  to  cases  of  American  citizens 
332 


CHAR  VII.]  MEXICAN  ^' MATRICULATION."  [§  172a. 

imprisoned  iu  Mexico,  with  a  view  of  securing  an  investigation  and 
speedy  trial,  and  ia  not  one  of  which  has  objection  been  made  to  your 
interposition  on  the  ground  that  the  accused  person  had  not  matricu- 
lated. 

"  In  that  instruction  you  were  told  that  this  Government  declined  to 
recognize  the  pretension  of  Mexico  to  limit  the  diplomatic  intervention 
in  behalf  of  abused  citizens  of  the  United  States  in  Mexico,  to  those 
cases  in  which  the  injured  person  had  been  registered  or  matriculated, 
and  that  the  inherent  right  of  such  citizen  to  demand  of  his  Govern- 
ment and  its  duty  to  afford  him  such  protection  as  was  possible  in  a 
foreign  land  could  not  be  controlled  or  abridged  by  a  Mexican  munici- 
pal statute. 

"  Your  action  and  conclusion  iu  respect  of  Mr.  Walker's  case  is  there- 
fore approved.  Until  Mexico  shall  meet  our  argument  as  to  matricu- 
lation on  such  basis  as  this  Government  may  accept,  with  due  regard 
to  its  constitutional  and  international  right  to  protect  its  citizens  abroad, 
you  will  continue  to  ignore  the  Mexican  contention  that  a  failure  to 
matriculate  necessarily  debars  a  citizen  of  the  United  States  from  the 
assistance  of  its  diplomatic  representative  at  the  Mexican  capital." 
Same  to  same,  June  23,  1881 ;  ihid. 

''  It  may  be  presumed  that,  in  providing  for  a  system  of  matriculation, 
the  aim  of  the  Mexican  Government  is  to  defend  itself  against  unjust 
foreign  claims,  an  object  to  whicb,  as  a  general  principle,  no  exception 
can  be  taken.  When  the  Mexican  Government,  however,  by  domestic 
act,  undertakes  to  sever  the  relations  of  dependence  and  protection 
which  exist  between  the  citizens  of  a  foreign  state  and  their  own  Gov- 
ernment, it  is  clear  that  it  goes  beyond  legitimate  bounds,  and  that  ac- 
quiescence in  such  measures  is  not  to  be  expected  from  the  Govern- 
ment whose  constitutional  and  international  rights  are  so  infringed." 
Same  to  same,  Nov.  4, 1884;  ibid. 

"  I  am  in  receipt  of  your  telegram  of  the  17th  instant  to  the  effect 
that  your  official  diplomatic  intervention  in  behalf  of  Monahan,  had,  on 
the  ground  that  he  is  not  matriculated,  been  refused  by  the  Mexican 
Government. 

"  This  telegram  is  assumed  to  be  in  response  to  the  Department's  in- 
struction, instructing  you  to  present  evidence  of  Monahan's  citizenship. 
The  object  was  to  place  on  record  in  that  case,  as  in  any  other  of  the 
same  character  which  may  arise,  our  official  non-acceptance  of  the  Mex- 
ican doctrine  of  matriculation. 

"  There  is  perhaps  in  the  relations  of  the  two  countries  no  one  subject 
upon  which  an  accord  is  more  necessary  than  this  of  the  right  of  the 
citizens  of  the  one  country  in  tlie  territory  of  the  other  to  the  protec- 
tion of  their  own  Government.  The  Mexican  law  of  matriculation  seeks 
to  impair  this  inalienable  duty  of  protection  by  making  its  exercise 
depend  upon  a  domestic  law  of  one  of  the  parties.     Wc  liold,  in  broad 

333 


§  112a.']    CITIZENSHIP,  NATUKALIZATION,  AND  ALIENAGE.  [CIIAP.  VII. 

terms,  tliat  it  is  not  within  the  scope  of  uumicipal  legislation  to  impair 
the  relations  of  an  alien  towards  liis  own  Government,  or  to  impair  tho 
international  right  of  his  Government,  as  one  among  equals  in  the  com- 
munity of  states,  to  intervene  with  another  Government  to  secure  him 
justice." 

Same  to  same,  Dec.  20,  1884 ;  ibid. 

To  this,  Mr.  Morgan,  on  January  12,  1885,  answered  by  submitting 
the  following  statement : 

"  (1)  'The  provisions  of  the  Mexican  matriculation  law.' 

"The  law  referred  to  consists  of  two  decrees  issued  by  President  Jua- 
rez, the  first  from  the  city  of  INIexico,  on  tho  IGth  of  March,  18G1,  the 
second  from  the  city  of  Chihuahua,  on  tho  0th  of  December,  ISGC.  The 
text  and  a  translation  of  both  decrees  are  annexed  hereto. 

"  The  second  decree  reforms  the  first  in  several  particulars,  especially 
by  permitting  foreigners,  although  they  have  not  been  registered  as 
such,  to  appear  before  the  tribunals  of  the  country,  notaries,  &c.  But 
the  provisions  of  the  first  decree,  in  so  far  as  they  provide  that  foreigners 
who  may  wish  to  exercise  rights  as  such  shall  cause  themselves  to  be 
enrolled  on  the  register  of  matriculation  and  to  take  out  certificates 
thereof,  were  declared  to  remain  in  force.  And  to  the  first  decree  was 
added  a  most  important  clause,  viz,  that  matriculation  prcduces  no  re- 
troactive eflect.  That  is,  if  the  fact  which  gave  rise  to  a  demand  in 
behalf  of  a  foreigner  existed  before  he  became  matriculated,  the  foreign 
nationality  of  the  claimant  cannot  be  admitted.    *     *    * 

"  (2)  '  Whether  applicable  to  transient  sojourners,  travelers,  officers, 
and  crews  of  vessels,  and  the  like,  who  have  no  purpose  or  opportunity 
of  sojourn.' 

"  I  know  no  case  where  the  decrees  have  been  invoked  against  cap- 
tains of  vessels.  It  was  not  referred  to  in  the  correspondence  between 
this  legation  andthedepartmentfor  foreign  affairs  in  the  case  of  Captain 
Metzer  of  the  steamer  isi^ewbern,  or  in  the  case  of  Capt.  George  Caleb 
of  the  schooner  Adriana,  with  both  of  which  cases  you  are  familiar. 
The  decrees,  however,  are  general  in  their  scope,  and  make  no  excep- 
tions in  favor  of  any  class  of  persons.  They  evidently,  in  the  opinion 
of  the  Mexican  Government,  apply  to  travelers  (and  therefore  to  so- 
journers). They  were  invoked  by  anticipation,  as  you  will  remember, 
in  the  case  of  Mr.  and  Mrs.  Thomas  B.  Gartrell.    *    *     * 

"  (3)  '  What  rights  as  a  foreigner  are  established  by  the  fact  of  ma- 
triculation ? ' 

"iS'oue  that  I  am  aware  of  beyond  those  mentioned  in  the  decrees  to 
which  I  have  referred,  and  the  rights  of  their  respective  Governments 
after  their  matriculation  to  have  any  intercession  presented  through 
diplomatic  channels. 

"  (4)  '  What  rights  are  denied  in  the  event  of  non-matriculation  1 ' 

"The  right  to  the  official  diplomatic  intervention  of  their  Government 
in  their  behalf  in  case  of  need.  For  instance,  if  a  citizen  of  the  United 
States  should  be  arrested  for  any  cause  in  Mexico,  no  diplomatic  inter- 
vention in  his  behalf  would,  under  the  decrees,  be  admitted,  if  he  had 
not  previously  matriculated  at  the  foreign  office.  A  late  example  is  the 
case  of  Thomas  It.  IMonahan.  At  first  the  objection  that  he  was  not  ma- 
triculated was  not  raised  ;  but  at  last,  when  I  demanded  his  immediate 
trial  or  release,  I  was  inlbrmed  that  my  official  diplomatic  intervention 
could  not  be  entertained  upon  the  ground  that  he  was  not  matriculated. 


CHAP.  VII,]  MEXICAN  ''mateiculation."  [§  172a. 

It  is  true  that  Moiiahau  was  subsequently  released.  How  be  was  re- 
leased has  uever  been  officially  communicated  to  me.  He  informed  me 
that  the  judge  sent  for  him  and  said  to  him  that  "he  had  been  honor- 
ably acquitted,"  but  that  he  had  had  no  trial  of  any  kind.  He  also 
stated  to  me  that  to  his  discharge  it  was  added  that  should  the  supe- 
rior court  disapprove  of  the  proceedings  of  the  lower  court  he  was  to 
present  himself  before  the  tribunal  again. 

"(5)  'Whether  the  Mexican  law  denies  the  validity  of  any  evidence 
of  alien  status  save  that  presented  by  the  certificate  of  matriculation. 
If  not— 

"(G)  'What  evidence  of  citizenship  may  be  presented  to  establish  the 
fact  of  alienage?' 

"  The  want  of  a  certificate  of  matriculation  has  been  considered  suf- 
ficient to  deny  the  right  of  diplomatic  intervention,  and  therefore  it 
appears  to  me  that  the  decrees,  or  rather  the  action  of  the  authorities 
thereunder,  denies  the  validity  of  auy  evidence  of  alien  status  other 
than  matriculation,  and  that  none  other  would  be  admitted  to  establish 
it.  I  have,  however,  never  had  occasion  to  test  this,  no  case  of  the 
kind  having  ever  occurred.  You  will  have  observed  from  the  text  of 
the  decrees  that  even  a  certificate  of  matriculation  is  not  available  to 
the  person  in  whose  behalf  it  has  been  issued  for  any  matter  which  oc- 
curred anterior  to  the  date  of  the  certificate  of  matriculation.     *     *     * 

"(7)  'A  list  of  the  cases  in  which,  on  proof  of  citizenship  according 
to  the  laws  of  the  United  States,  diplomatic  intervention  has  been  re- 
jected because  of  non-matriculation.' 

"  There  are  no  such  cases.  The  citizenship  of  the  parties  in  whose 
behalf  dii)lomatic  intervention  has  been  attempted  has  never  been 
questioned.  The  Mexican  Government,  in  such  instances,  has  only  con- 
sidered it  necessary  to  deny  diplomatic  intervention  on  the  ground  that 
the  party  in  whose  aid  it  was  invoked  had  not  previously  been  matricu- 
lated.    *     *     * 

'•The  records  of  this  legation  show  that  since  the  publication  of  the 
Mexican  matriculation  decrees  two  hundred  and  fifty-five  citizens  of  the 
United  States  have  been  matriculated  at  the  foreign  office,  and  of  these 
one  hundred  and  twenty-four  have  been  matriculate  since  the  year  1880. 
This  represents  but  a  fraction  of  our  citizens  who  are,  or  who  have 
been  during  the  period  stated,  in  this  country.  The  decrees  are  munici- 
pal regulations,  and  few  of  our  countrymen  coming  here  know  of  their 
existence.    *     *     * 

"  1  have  never  failed,  when  the  opportunity  presented  itself,  of  ex- 
plaining to  our  fellow-citizens  who  have  called  at  the  legation  the  Mexi- 
can contention  upon  this  subject,  and  to  advise  them,  in  order  to  avoid 
any  possible  difficulty,  to  comply  with  the  requirements  of  the  decrees. 
This  I  have  done,  not  because  I  have  ever  entertained  the  opinion  that 
their  right  to  the  intervention  of  their  Government  depended  upon  a 
compliance  on  their  part  with  the  requirements  of  the  decree  in  ques- 
tion, but  simply  as  a  means  of  preventing  any  possible  discussion 
thereon. 

"The  position  in  which  citizens  of  the  United  States  in  Mexico  may 
be  ])lacedif  the  contention  of  the  Mexican  Government  be  admitted  is  a 
])aiiiful  and  a  difficult  one.  It  would  be,  under  certain  circumstancc^s, 
absolutely  imi)Ossil)le  for  them  to  obtain,  in  their  direst  need,  the  diplo- 
matic protection  of  ilieir  Goveininent.  I'or  instance,  suppose  (as  1  have 
already  indicated)  one  of  tliem  were  to  come  into  the  country  i)rovide(l 
with  a  passport  from  the  Dei)artment  of  State,  and  immediately  u\nm 


§  172a.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.   [CUAP.  VII. 

liis  crossiDo-  the  frontier  he  were  to  be  taken  possession  of  and  confined 
in  prison,  charged  with  the  commission  of  some  ofl'ense,  or  mustered 
into  the  army  ;  the  intervention  of  this  legation  wonld  not  be  accepted 
in  his  behalf,  because  he  had  not  matriculated  as  a  foreigner.  For  you 
will  have  observed  that  the  question  of  citizenship  is  not  the  one  with 
which  the  Mexican  Government  concerns  itself.  It  does  not  look  beyond 
the  fact  of  matriculation,  and  bases  its  refusal  to  admit  diplomatic  in- 
terlereuce  on  the  ground  of  non-matriculation  alone.  It  is  true  that  in 
certain  instances  of  imprisonment  and  impressment  into  the  army  this 
l>osition  has  not  been  taken,  but  in  others  it  has,  notably  in  the  cases  of 
claims  made  by  citizens  of  the  United  States,  or  their  heirs,  for  dam- 
a<^es  arising  from  torts  committed  on  them.  *  *  *  It  is  also  true 
that  instances  have  occurred  when,  notwithstanding  the  denial  of  the 
right  of  intervention,  the  intervention  has  been  successful." 

Mr.  Morgan  to  Mr.  Frelinghnysen,  See.  of  State,  .Jan.  P2,  IBS."*.    MSS.  Dispatches, 
Hex.;  For.  Eel.,  ISS.'S. 

"  I  have  to  acknowledge  the  receipt  of  your  No.  9G2,  of  the  12th  ultimo, 
in  reply  to  the  inquiries  of  this  Department  respecting  the  matricula- 
tion laws  of  Mexico.  The  Department  has  read  with  interest  your 
careful  review  of  the  subject.  It  appears  that  matriculation  of  foreigners 
consists  in  registering  their  names  and  nationality  in  the  foreign  office  of 
Mexico. 

"The  Mexican  Government  contends  that  the  national  character  of 
the  foreigner  is  proved  by  this  matriculation,  which  entitles  him  to  spe- 
cial privileges  and  obligations,  called  the  rights  of  foreigners.  These 
arc  (1)  the  right  to  invoke  the  treaties  and  conventions  existing  between 
his  country  and  Mexico;  (2)  the  right  to  seek  the  protection  of  his  own 
Government. 

"They  further  contend  that  the  want  of  a  certificate  of  matriculation 
will  be  considered  sufficient  to  deny  to  this  Government  the  right  of 
diplomatic  intervention  in  any  case. 

"Against  this  contention  this  Government  protests  as  an  interference 
in  its  relations  to  its  citizens.  The  Government  of  the  United  States 
recognizes  the  right  of  Mexico  to  prescribe  the  reasonable  conditions 
upon  which  foreigners  may  reside  within  her  territory,  and  the  duty  of 
American  citizens  there  to  obey  the  municipal  laws;  but  those  laws 
cannot  disturb  or  affect  the  relationship  existing  at  all  times  between 
this  Government  and  one  of  its  citizens.  The  duty  is  always  incumbent 
upon  a  Government  to  exercise  a  just  and  proper  guardianship  over  its 
citizens,  whether  at  home  or  abroad.  A  municipal  act  of  another  state 
cannot  abridge  this  duty,  nor  is  such  an  act  countenanced  by  the  law 
or  usage  of  nations.  No  country  is  exempted  from  the  necessity  of  ex- 
amining into  the  correctness  of  its  own  acts.  A  sovereign  who  departs 
from  the  principles  of  public  law  cannot  find  excuse  therefore  in  his 
own  municipal  code.  This  Government,  being  firmly  convinced  that 
the  position  of  the  Mexican  Government  is  untenable,  cannot  assent 
to  it. 

330 


CHAP.  VII.]  MEXICAN    '' MATRICULATION."  [§  172a. 

"You  will  SO  inform  the  minister  for  foreign  affairs  in  siicb  form  as 
you  may  deem  proi^er." 

Jlr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Morgan,  Dec.  20,  1884.     MSS.  Inst., 
Mex. ;  For.  Eel.,  1885. 

"  There  may  arise  two  difificulties,  as  you  will  readily  understand,  in 
the  way  of  presenting  this  case  hopefully  to  the  Government  of  Mexico: 

"First.  That  E may  not  be  matriculated  as  an  American  citizen. 

If  not  so  registered  Mexico  may,  as  usual,  deny  the  right  of  this  Gov- 
ernment to  intervene  diplomatically  in  his  behalf.  Although  our  posi- 
tion on  this  i)oint  is  well  understood  by  Mexico,  and  is  that  a  Mexican 
municipal  law  cannot  abridge  the  right  of  a  foreign  Government  to  pro- 
tect one  of  its  citizens,  in  case  of  need,  that  Government  frequently  sets 
up  the  plea  of  non-matriculation,  and  thereby  seeks  to  neutralize  the 
duty  of  this  Government  towards  a  citizen. 

"  Second.  By  the  terms  of  railroad  grants  in  Mexico,  it  is  believed 
that  officers  and  employes  of  the  roads,  within  Mexican  territory,  are 
declared  amenable  to  the  laws  as  Mexicans,  and  are  inhibited  from  plead- 
ing rights  of  alien  protection  and  usage,  even  if  matriculated.  Their 
taking  such  service  in  Mexico  is  there  deemed  to  be  a  contract,  a  con- 
dition of  which  is  the  surrender  by  them  of  the  right  to  claim  the  protec- 
tion of  their  own  Government.  I  am  not  prepared  to  admit  that  such  a 
waiver  annuls  the  relation  of  the  citizen  to  his  own  Government,  and  I 
certainly  cannot  think  that  it  extinguishes  the  obligation  of  this  Govern- 
ment to  protect  its  citizens  in  Mexico  in  the  event  of  a  denial  of  justice. 
Giving  the  contract  its  fullest  scope,  it  can  certainly  mean  no  more  than 
that  the  persons  so  bound  are  admitted  to  be  entitled  to  justice  in  lieu 
of  the  broader  claim  to  international  justice,  and  in  case  of  a  denial  of 
justice  the  obligation  of  this  Government  to  protect  them  remains  un- 
impaired." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Morgan,  May  26, 1885.     MSS.  Inst.,  Mex. 

By  a  note  dated  June  IG,  1886,  Mr.  Romero,  minister  from  Mexico,  in- 
formed Mr.  Bayard,  Secretary  of  State,  that "  the  laws  which  prescribed 
the  matriculation  of  foreigners"  have  been  repealed,  "leaving  it  op- 
tional with  foreigners  residing  in  Mexico  to  request  a  certificate  of  their 
nationality,  which  will  be  issued  to  them  by  the  secretary  of  foreign 
relations." 

MSS.  Notes,  Mex.  Leg. 

"  I  am  in  receipt  of  a  copy  of  the  law  of  28th  May,  sent  hither  by  the 
United  States  legation  in  Mexico,  and  a  perusal  of  its  text  confirms  the 
gratifying  impression  conveyed  by  your  note,  that  the  substitution  of  an 
optional  registration  of  foreigners  as  i)resumptivo  evidence  of  their 
status,  in  place  of  compulsory  matriculation  as  the  solo  condition  of 
])roving  alien  status  in  Mexico,  and  enjoying  international  rights  per- 
taining to  such  status,  will  remove  the  grounds  of  complaint  which  have 
heretofore  obstructed  the  friendly  consideration  of  internal ionnl  <|nos- 
tions  by  the  two  Governments. 

S.  Mis.  IOl'— VOL.  II 2-2  -^^"^ 


§  173]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAT.  VII. 

"I  observe,  however,  that  the  same  section,  the  39th,  to  which  you 
refer.  i)rovides  that  'the  tletiuite  proof  of  determiuate  natiouality  shall 
be  made  before  the  competent  courts  and  by  the  means  established  by 
the  laws  or  treaties.'  Reserving  the  point  until  it  shall  be  better  under- 
stood, I  may  express  my  contidence  that  nothing  in  Mexican  domestic 
legislation,  or  in  the  judicial  proceedings  thereunder,  will  be  fouml  cal- 
culated to  inii)air,  as  the  compulsory  system  of  matriculation  has  here- 
tofore api>eared  to  do,  the  reciprocal  right  and  duty  of  a  citizen  of  the 
United  States  in  respect  of  the  national  protection  to  which  he  is  enti- 
tled and  the  allegiance  he  owes." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Komero,  Juno  19,  18SG.     MSS.  Notes,  Mex. 

For  iuciilental  notices  of  "matriculation"  see  mipra,  $  171. 

As  to  limitations  upon  foreigners  in  Mexico,  see  Consular  Reports  on  Commer- 
cial Relations,  188:{,  No.  31,  6c8  /. 

As  to  Salvador  matriculation,  see  App.,  vol.  iii,  ^  Yi'Za. 

II.  NATURALIZATION. 

(1)  PRIXCin.ES  AND  LIMITS   OF. 
§   173. 

The  joint  resolution  of  Congress,  of  July  27,  1868,  alfirmiug  the  riglit 
of  expatriation,  is  given  supra,  §  171. 

The  acts  of  Congress  limiting  naturalization  are  in  the  Revised  Stat- 
utes, sections  21G5-2174. 

The  Fourteenth  Amendment  to  the  Constitution  of  the  United  States 
does  not  give  a  specific  enumeration  of  citizens  of  the  United  States. 
It  merely  i>rescribes  that  "all  persons  born,"  etc.,  "are  citizens."  The 
object  of  the  amendment  was  not  to  logically  define  citizenship,  but 
to  extend  citizenship  to  certain  classes  whose  citizenship  had  been  pre- 
viously questioned,  and  to  i)laceall  citizens  under  distinctively  Federal 
protection. 

"  It  can  admit  of  no  doubt  that  the  naturalization  laws  of  the  United 
States  contemplate  the  residence  in  the  country  of  naturalized  citizens, 
unless  they  shall  go  abroad  in  the  public  service,  or  for  temporary  pur- 
poses." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Porter,  Aug.  '26,  184'2.     MSS.  Inst.,  Turkey. 

"  The  12th  section  of  the  act  of  March  3,  1813,  for  the  regulation  of 
seamen  on  board  the  public  and  private  vessels  of  the  United  States, 
provides  '  that  no  per.son  who  shall  arrive  in  the  United  States  from 
and  after  the  time  when  this  act  shall  take  effect,  shall  be  admitted 
to  become  a  citizen  of  the  United  States  who  shall  not  for  the  continued 
terra  of  five  years  next  preceding  his  admission  as  aforesaid,  have  re- 
sided within  the  United  States,  without  being  at  any  time  during  the 
said  five  years  out  of  the  United  States.' 

"Under  this  statute  it  was  held  that  any  absence  from  the  United 
States,  however  short,  during  the  five  years,  even  the  hinding  from  a 
steamboat  in  Canada,  would  prevent  the  applicant  from  obtaining  his 
naturalization.     Such  an  interpretation  of  it  was  deemed  a  hardship, 

338 


CHAP.  VII.]  NATURALIZATION:    PRINCIPLES    OF.  [§  1'73. 

and  to  deprive  the  law  of  this  striugeut  feature,  the  act  of  June  2G, 
18-48,  was  passed,  repealing  the  words  '  without  being  during  the  said 
five  years  out  of  the  territorj^  of  the  IJnited  States,'  found  in  the  last 
clause  of  the  section  above  referred  to. 

"The  law  as  it  now  stands  therefore  requires  that  the  applicant  in 
order  to  be  entitled  to  naturalization  must  have  resided  within  the 
United  States  for  the  continued  term  of  five  years  next  precediug  his 
admission  as  a  citizen.  This  language  wholly  excludes  the  idea  that 
the  person  may  be  allowed  to  go  to-another  countrj^  and  there  make  his 
domicil  as  long  as  it  may  suit  his  convenience,  and  then  return  to  the 
United  States  and  avail  himself  of  the  time  he  had  previously  resided 
within  their  territory." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Fay,  Mar.  22, 1856.    MSS.  Inst.,  Switz. 

.  "  Congress  by  repealing,  in  1848,  that  part  of  the  12th  section  of  the 
act  of  March  3,  1813,  which  made  it  a  requisite  to  naturalization  that 
the  alien  'during  the  continued  term  of  five  years  next  preceding  his 
admission,  should  not  have  been  at  any  time  out  of  the  territory  of 
the  United  States,'  must  be  supposed  to  have  intended  that  nothing 
further  should  be  exacted  than  five  years'  residence  in  the  general  legal 
sense."    *    *    * 

"A  person  exceptionally  naturalized  by  reason  of  his  service  as  a  sol- 
dier, upon  i^roof  of  one  year's  residence,  is  obviously  not  within  the 
protection  of  the  convention  with  the  North  German  Union  unless  he 
has  resided  five  years  within  the  United  States,  but  in  respect  to  the 
question  of  what  constitutes  residence  and  when  it  is  to  be  deemed  in- 
terrupted, or  when  he  shall  be  regarded  as  having  renounced  his  allegi- 
ance to  the  United  States,  he  is  to  be  judged  in  the  same  manner  as 
other  naturalized  citizens." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bancroft,  Sept.  20,  1870.    MSS.  Inst.,  Prussia. 

A  State  court,  being  entitled  to  issue  a  certificate  of  naturalization, 
is  not  within  the  purview  of  the  circular  of  January  10, 1871,  which  pre- 
scribes that  certificates  of  citizenship  by  State,  munici{ial,  or  local  offi- 
cers are  to  be  regarded  as  invalid. 

Mr.  FisL,  Sec.  of  State,  to  Mr.  Jay,  Mar.  18,  1872.     MSS.  Inst.,  Austria. 

"It  is  apprehended,  however,  that  the  Moorish  Government  may  bo 
mistaken,  if  it  suppo.ses  that  the  efifect  of  the  naturalization  of  the  per- 
son adv«.'rte<l  to,  snpi)Osing  it  to  having  taken  place,  would  be  to  weaken 
liis  liability  for  liis  debts  in  Morocco,  even  if  ho  should  rclnrn  to  that 
country.  Wo  Jiiight,  in  that  case,  be  prosecuted  for  them  in  the  consular 
(•(turt,  and  this  (iovernnient  is  bound  to  i)n'sunie  tliat  iin])artial  justice 
would  there  be  dispensed." 

Mr.  FiKli.Sec.  of  State,  to  Mr.  MatlicwH,  Oct.  2:5, 1«72.     MSS.  IiihI.,  IJaib.  I'owcrH. 

An  alien  who  has  served  as  a  soldier  can  only  avail  himself  of  the 
privileges  of  section  L'UiO  of  tlu^  Ifcvised  Statutes  by  ju'isonal  applica- 

331) 


§173.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [clIAr.  VII. 

tion  to  one  of  the  proper  courts  of  justice,  upon  the  declaration  and  proof 
required  by  the  statute. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  O'Neill,  Nov.  1.''),  188L     MSS.  Doni.  Let. 

The  Government  of  the  United  States  ''cannot  admit  of  qualified  nat- 
uralization, subject  to  the  consent  of  the  country  of  origin,  neither  could 
our  courts,  in  Avhich  the  judicial  power  of  naturalization  is  vested  by 
law,  take  cognizance  of  the  consent  of  a  foreign  state  as  a  precedent  to 
naturalization." 

Mr.  Frelingbuysen,  Sec.  of  State,  to  lU:  Cramer,  Oct.  19,  1882.     MSS.  Inst,, 
Switz.     See  supra,  ^  172. 

"When  an  alien  applies  to  be  admitted  to  citizenship  in  this  country, 
having  undergone  the  probation,  and  in  all  other  respects  complied  with 
the  laws  on  the  subject  of  naturalization,  and  in  open  court  solemnly 
avows  his  allegiance  to  the  United  States,  and  with  the  same  solemnity 
renounces  his  allegiance  to  every  other  Government,  and  especially  to 
that  of  the  country  of  his  birth,  and  is  found  to  be  of  good  moral  char- 
acter, he  is  admitted  to  such  citizenship;  and  is  thenceforth  clothed  and 
invested  with  the  same  rights  and  privileges  that  pertain  to  native  citi- 
zens of  the  country,  and  entitled  to  the  same  degree  of  protection, 
whether  abroad  or  at  home.  This  is  the  condition  of  Mr.  Meyer,  and 
this  Government  would  fall  short  of  the  duty  which  it  owes  to  its  citi- 
zens if  it  failed  in  the  application  of  this  traditional  doctrine  of  the 
Kepublic  to  his  case  in  connection  with  the  present  incident." 

Same  to  same,  July  28,  1883 ;  ibici. 

"  Our  existing  naturalization  laws  also  need  revision.  Those  sections 
relating  to  persons  residing  within  the  limits  of  the  United  States  in 
1795  and  1798  have  now  only  a  historical  interest.  Section  2172,  rec- 
ognizing the  citizenship  of  the  children  of  naturalized  parents,  is  am- 
biguous in  its  terms  and  partly  obsolete.  There  are  special  provisions 
of  law  favoring  the  naturalization  of  those  who  serve  in  the  Army  or 
in  merchant  vessels,  while  no  similar  privileges  are  granted  those  who 
serve  in  the  i^^avy  or  the  Marine  Corps. 

'"An  uniform  rule  of  naturalization,' such  as  the  Constitution  con- 
templates, should,  among  other  things,  clearly  define  the  status  of  per- 
sons born  within  the  United  States  subject  to  a  foreign  power  (section 
1992)  and  of  minor  children  of  fathers  who  have  declared  their  inten- 
tion to  become  citizens  but  have  failed  to  perfect  their  naturalization. 
It  might  be  wise  to  provide  for  a  central  bureau  of  registry,  wherein 
should  be  filed  authenticated  transcripts  of  every  record  of  naturali- 
zation in  the  several  Federal  and  State  courts,  and  to  make  provision 
also  for  the  vacation  or  cancellation  of  such  record  in  cases  where  fraud 
had  been  practiced  upon  the  court  by  the  applicant  himself  or  where 
he  had  renounced  or  forfeited  his  acquired  citizenshi]).  A  just  and  uni- 
form law  in  this  respect  would  strengthen  the  hands  of  the  Govern 
310 


CiTAr.  VIL]  NATUKA.LIZx\TION  :    PRINCIPLES    OF.  [§  l'^3. 

meiit  ill  protectiug  its  citizens  abroad,  and  would  pave  the  waj'  lor  tlie 
conclusion  of  treaties  with  foreign  countries." 

President  Arthur,  Fourth  Annual  Message,  1884. 

"  Questions  concerning  our  citizens  in  Turkey  may  be  affected  by  the 
Porte's  non -acquiescence  in  the  right  of  expatriation  and  by  the  impo- 
sition of  religious  tests  as  a  condition  of  residence,  in  which  this  Gov- 
ernment cannot  concur.  The  United  States  must  hold,  in  their  inter- 
course with  every  power,  that  the  status  of  their  citizens  is  to  be  re- 
spected and  equal  civil  privileges  accorded  to  them  without  regard  to 
creed,  and  aflected  by  no  considerations  save  those  growing  *out  of 
domiciliary  return  to  the  land  of  original  allegiance,  or  of  unfulfilled 
personal  obligations  which  may  survive,  under  municipal  laws,  after 
such  voluntary  return. 

"The  inadequacy  of  existing  legislation  touching  citizenship  and 
naturalization  demands  your  consideration.  While  recognizing  the 
right  of  expatriation,  no  statutory  provision  exists  providing  means  for 
renouncing  citizenship  by  an  American  citizen,  native  born  or  natural- 
ized, nor  for  terminating  and  vacating  an  improper  acquisition  of  citi- 
zenship. Even  a  fraudulent  decree  of  naturalization  cannot  now  be 
canceled.  The  privilege  and  franchise  of  American  citizenship  should 
be  granted  with  care,  and  extended  to  those  only  who  intend  in  good 
faith  to  assume  its  duties  and  responsibilities  when  attaining  its  priv- 
ileges and  benefits;  it  should  be  withheld  from  those  who  merely  go 
through  the  forms  of  naturalization  with  the  intent  of  escaj)iug  the 
duties  of  their  original  allegiance  without  taking  upon  themselves  those 
of  their  new  status,  or  who  may  acquire  the  rights  of  American  citizen- 
ship for  no  other  than  a  hostile  purpose  toward  their  original  Govern- 
ments. These  evils  have  had  many  flagrant  illustrations.  I  regard 
with  favor  the  suggestion  put  forth  by  one  of  my  predecessors,  that 
provision  be  made  for  a  central  bureau  of  record  of  the  decrees  of  nat- 
uralization granted  by  the  various  courts  throughout  the  United  States 
now  invested  with  that  power. 

"The  rights  which  spring  from  domicile  in  the  United  States,  espe- 
cially when  coupled  with  a  declaration  of  intention  to  become  a  citizen, 
are  worthy  of  definition  by  statute.  The  stranger  coming  hither  with 
intent  to  remain,  establishing  his  residence  in  our  midst,  contributing 
to  the  general  welfare,  and  by  his  voluntary  act  declaring  his  purpose 
to  assume  the  responsibilities  of  citizenship,  thereby  gains  an  inchoate 
status  which  legislation  may  properly  define.  The  laws  of  certain 
States  and  Territories  admit  a  domiciled  alien  to  the  local  franchise, 
conferring  on  him  the  rights  of  citizenshii)  to  a  degree  which  places 
him  in  the  anomalous  position  of  being  a  citizen  of  a  State  and  yet  not 
of  the  United  States,  within  the  purview  of  Federal  and  international 
law.     It  is  important  witliin  the  scope  of  national  legislation  to  define 

341 


$  173.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [ciIAP.  YII. 

this  right  of  iilioii  domicile  as  ilistiiiguisbcd  from  Federal  naturaliza- 
tion." 

l^rcsiileiit  Ck'vclaml,  First  Animal  Message,  1885. 

''Ill  reply  to  your  lottor  of  August  31,  1885,  stating  that  you  are  a 
native-born  subject  of  Great  Britain,  that  you  came  to  this  country  in 
1883,  being  then  IG  years  old,  and  asking  whether  you  are  not  en- 
titled to  the  full  rights  of  an  American  citizen  and  to  hold  the  i)osition 
of  deputy  clerk,  I  have  to  say  that  naturalization  is  a  judicial  act  i)er- 
forined  under  the  statute  by  a  court  of  record  having  a  clerk  and  a  seal. 
The  executive  branch  of  the  Government  cannot  prescribe  the  action 
of  any  court  on  a  given  api)lication,  but  it  may  be  observed  that  it  is 
probable  that  any  judge,  to  whom  you  apply  to  be  naturalized  after 
attaining  full  age  and  having  continuously  resided  in  the  United  States 
for  five  jears,  would  deem  the  provisions  of  section  21G7  of  the  Revised 
Statutes  applicable  to  your  case  as  you  now  describe  it." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Stuart,  Sept.  9,  1885.     MSS.  Dom.  Let. 

"  The  section  before  us  [§  2107,  Eev.  Stat.],  to  which  you  particularly 
allude,  applies,  so  I  hold,  to  an  alien  '  who  has  resided  in  the  United 
States  three  years  next  preceding  his  arrival  at  the  age  of  twenty-one 
years,  and  who  has  continued  to  reside  therein  to  the  time  he  may  make 
application  to  be  admitted  a  citizen  thereof.'  Such  a  person  '  may,  after 
he  arrives  at  the  age  of  twenty-one  years,  aud  after  he  has  resided  five 
years  within  the  United  States,  be  admitted  a  citizen  of  the  United 
States'  under  the  conditions  afterwards  stated.  The  object  of  this 
I)rovision  is  to  enable  a  jierson  who  has  resided  in  the  United  States 
five  years,  but  who,  from  the  fact  of  being  a  minor,  has  not  been  com- 
petent to  make  a  declaration,  to  make  his  declaration  at  the  expiration 
of  such  five  years,  and  be  at  once  naturalized,  provided  that,  at  the 
time  of  his  naturalization,  he  is  of  full  age.  In  such  case  his  declara- 
tion is  to  be  made  'at  the  time  of  his  admission  to  citizenship,  which  is 
to  be  construed  as  meaning  simultaneously  with  his  naturalization. 

"  It  is  thus  intended  to  offer  the  franchise  of  naturalization  to  all  per- 
sons, who,  ou  arriving  at  full  age,  have  resided  in  the  United  States 
five  years  before  that  period.  And  even  were  the  question  doubtful,  it  is, 
as  you  are  well  aware,  a  familiar  rule  that  in  the  construction  of  grants 
of  franchises,  that  construction  is  to  be  adopted  which  is  most  favorable 
to  the  persons  for  whose  benefit  the  franchise  is  to  be  granted — in  dubio 
mitiusP 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  von  Alveusleben,  Mar.  15,1886.     MSS.  Not«8, 
Germ. 

That  the  power  to  pass  naturalization  laws  is  exclusivelv  in  Congress, 
see  Chirac  v.  Chirac,  2  Wheat.,  2.59  ;  U.  S.  v.  Villato,  2  Dall.,  370 ;  Thur- 
low  V.  Massachusetts,  5  IIow.,  573,  585  ;  Norris  v.  Boston,  7  How.,  518, 
.550 ;  Golden  r.  Prince,  3  Wash.,  314.  Compare  Collet  v.  Collet,  2  Dall., 
294;  Dred  Scott  v.  Sandford,  19  How.,  393. 

342 


CHAP.  A'll.J  NATUEALIZATION :    PRINCIPLES    OF.  [§  173. 

There  is  under  the  Constitution  no  distinction  between  native  and 
naturalized  citizens. 

Osborn  v.  United  States  Bank,  9  Wheat.,  733. 

The  naturalization  act  of  April  14,  1802,  did  not  require  the  time  of 
arrival  in  the  United  States  to  be  proved  by  the  certificate  of  the  report 
of  the  alien  to  the  court;  other  evidence  thereof  was  admissible,  and 
the  decree  of  naturalization  was  not  required  to  notice  the  certificate. 
The  decree,  being  in  due  form,  was  conclusive  evidence  of  the  party. 
The  act  of  March  22,  181G,  which  required  the  certificate  to  be  recited 
in  the  decree  is  not  an  explanation,  but  an  alteration,  of  the  law  of  1802. 

Spratt  V.  Spratt,  4  Pet.,  393. 

A  citizen  of  the  United  States  residing  in  any  State  of  the  Union  is  a 
citizen  of  that  State. 

Gassies  v.  Ballon,  6  Pot.,  7G1. 

"We  have  in  our  political  system  a  government  of  each  of  the  several 
States  and  a  Government  of  the  United  States.  Each  one  of  these  gov- 
ernments is  distinct  from  the  other,  and  has  citizens  of  its  own  who 
owe  it  allegiance,  and  whose  rights,  within  its  jurisdiction,  it  must  pro- 
tect. The  same  person  may  be  at  the  same  time  a  citizen  of  the  United 
States  and  a  citizen  of  a  State ;  but  his  rights  of  citizenship  under  one 
of  these  governments  will  be  different  from  those  he  has  under  the 
other." 

Waite,  C.  J. ;  U.  S.  v.  Cruikshank,  92  U.  S.,  542. 

The  Government  of  the  United  States,  although  it  is,  within  the 
scope  of  its  powers,  supreme  and  beyond  the  States,  can  neither  grant 
nor  secure  to  its  citizens  rights  or  privileges  which  are  not  expressly  or 
by  implication  placed  under  its  jurisdiction.  "  All  that  cannot  be  so 
granted  or  secured  are  left  to  the  exclusive  protection  of  the  States." 
Ibid. 

In  the  absence  of  proof  that  an  alien  has  become  a  citizen  of  the 
United  States,  his  original  status  is  presumed  to  continue. 

Ilauenstein  i".  Lyubam,  100  U.  S.,  483. 

The  mere  right  of  suffrage  given  by  a  State  law  does  not  create  citi- 
zenship. 

U.  S.  V.  Rbodca,  1  Abb.  U.  S.,  28,  40. 

"A  i)erson  may  be  a  citizen  of  the  United  States,  and  not  a  citizen  of 
any  particular  State.  This  is  the  condition  of  citizens  residing  in  the 
District  of  Columbia  and  in  the  Territories  of  the  United  States,  or 
who  have  taken  u[)  a  resi<le!ice  abroad,  and  otlicrs  that  niiglit  l)i^  nieii 
ti(jned.  A  lixed  and  permanent  rcsidi-nce  or  doiiiicil  in  a  Shite  is  j'ssen- 
tial  to  the  character  of  citizeush'i)  that  will  bring  tlie  case  within   the 

313 


§  17o.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE,     [CIIAP.  VII. 

jurisdiction  of  tlie  Federal  courts,  as  will  appear  I'rom  the  cases  already 
referred  to." 

Nelsou,  J. ;  Preutiss  r.  Breunan,  2  Blatch.,  104,  165. 

The  expression  "Armies  of  the  United  States,"  as  used  in  the  acts  of 
Congress  with  respect  to  naturalization,  and  particularly  section  20  of 
the  act  of  18G2  (12  Stat.  L.,  597;  Eev.  Stat.,  §  21GG),  does  not  include 
marines  or  sailors. 

Bailey  in  re,  2  Sawyer,  200. 

But  in  Stewart  in  re,  7  Robins.  (N.  Y.),  G35,  it  was  said  by  McCunn,  J. :  "Where 
a  person  making  application  to  be  naturalized  furnishes  proof  of  good 
moral  character,  of  one  year's  residence  within  the  United  States,  and  that 
he  is  of  the  age  of  twenty-one  years  and  upward,  and  shows  that  he  was 
regularly  enlisted  in  the  United  States  Navy,  where  he  served  as  an  enlisted 
man,  and  that  he  has  been  honorably  discharged  from  the  service;  these 
facts  bring  his  case  within  the  provision  of  section  21  of  the  act  of  Con- 
gress approved  July  17, 1862  (Rev.  Stat.,  $  2166),  so  as  to  entitle  him  to  nat- 
uralization by  virtue  of  that  statute.  The  word  armies  as  used  in  that  act 
is  nomen  gcneralissimum,  applying  to  both  land  and  naval  forces." 

Katuralizatiou  signifies  the  act  of  adopting  a  foreigner  and  clothing 
him  with  the  privileges  of  a  native  citizen  or  subject. 
9  Op.,  356,  Black,  1859. 

A  person  disfranchised  as  a  citizen  by  conviction  for  crime  under  the 
laws  of  the  United  States  can  be  restored  to  his  rights  as  such  by  a  free 
and  full  pardon  from  the  President,  and  such  pardon  may  be  granted, 
after  he  has  suffered  the  other  penalties  incident  to  his  conviction,  as 
well  as  before. 

9  Op.,  478,  Black,  1860. 

The  United  States  may,  by  laws,  fix  or  declare  the  conditions  of  citi- 
zenship within  their  territorial  jurisdiction,  and  may  confer  the  rights 
of  citizenship  everywhere  upon  persons  who  are  not  rightfully  subject 
to  the  authority  of  any  foreigc  Government ;  but  they  cannot,  by  under- 
taking to  confer  the  rights  of  citizenship  upon  the  subjects  of  a  foreign 
nation,  who  have  not  come  within  their  territory,  interfere  with  the  ju3t 
rights  of  such  nation  to  the  government  and  control  of  its  own  subjects. 

13  Op.,  89,  Hoar,  1869. 

Where  the  subject  is  not  regulated  by  treaty,  no  distinction  can  be 
naade,  with  respect  to  protection  abroad,  between  naturalized  and  na- 
tive-born citizens  of  the  United  States.  The  domiciliation  of  a  natural- 
ized citizen  of  the  United  States  in  his  native  country  would  not  of 
itself  deprive  him  of  his  right  to  the  protection  of  thisJGrOvernment. 

14  Op.,  2\)o,  Williams,  1873. 

F'or  discussion  of  the  naturalization  laws  of  the  United  States,  see  1  Phill.  Int. 
Law  (3d  ed.),  451 ;  Lawrence  com.  sur  droit  int. ;  3  Wheat.,  183^. 

The  question  of  Chinese  citizenship  is  discussed  in  some  detail  by 
Calvo,  droit  int.  (.3d  cd.),  vol.  2,  60,  70.    This  learned  author,  however, 

344 


ClIAr.  VII.]       NATURALIZATION:     PROCESS    AND    PROOF.  [§  174. 

rests  oil  the  assimiptiou  that  the  fourteeuth  amenduieut  to  the  Coustitu- 
tion  excepts  from  the  general  category  of  citizens  by  birth  only  children 
of  ambassadors,  and  hence  does  not  except  children  of  Chinese.  The 
langnage  of  the  amendment  is  that  "all  persons  born  or  naturalized  in 
the  United  States,  and  subject  to  the  jurisdiction  thereof^  are  citizens  of 
the  United  States,"  «S:c.  If  Chinese,  when  born  in  the  United  States, 
are  not,  in  the  sense  of  this  amendment,  "subject  to  the  jurisdiction 
thereof,"  they  are  not  citizens  by  force  of  the  amendment.  It  has,  how- 
ever, been  judicially  held  that  a  child  born  in  the  United  States  to 
Chinese  parents  is  a  citizen  of  the  United  States.  Look  Tin  Sing  in  re, 
10  Sawyer,  353.  Calvo,  droit  int.  (3d  ed.),  vol.  2,  70,  also  notices  that 
the  terms  of  naturalization  in  the  United  States  are  more  rigorous  than 
they  are  in  the  principal  countries  of  Europe;  the  United  States  stat- 
utes require,  not  merely  an  oath  of  allegiance,  but  the  renunciation  of 
all  other  allegiances,  and  especially  to  the  sovereign  of  birth.  As  to 
Chinese,  see  further  in/m,  §  197 ;  supra,  §  144. 

(2)  Process  and  proof. 

§174. 

"  The  recitals  of  the  certificate  of  naturalization,  a  copy  of  which  ac- 
companies your  dispatch,  on  this  point  are:  'That  he  resided  in  the 
United  States  three  years  next  preceding  his  arriving  at  the  age  of 
twentj'-one  years,  and  has  continued  to  reside  therein  to  this  time;  and 
that  he  has  resided  within  this  State  for  one  year  preceding  this  date, 
and  that  he  is  twenty-one  years  of  age,  and  that  he  has  resided  five 
years  within  the  United  States,  including  the  three  years  of  his  mi- 
nority.' 

"I  am  of  opinion  that  these  conditions  amount  to  a  fulfillment  of 

the  requirements  of  the  law  in  the  class  of  cases  to  which  that  of  R 

belongs.  Statutes  enlarging  or  conferring  personal  rights  are  to  be 
construed  liberally,  in  contradistinction  to  those  which  abridge  or  take 
away  such  rights.  This  liberal  rule  of  judicial  interpretation,  in  har- 
mony as  it  is  with  our  system  of  Government,  has  been,  so  far  as  I  am 
aware,  uniformly  respected  and  followed  by  the  executive  branch  of 
the  Government." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  Dec.  20,  1875;  MSS.  lust.,  Gorm. 

As  to  provisions  in  respect  to  taking  oath  to  support  the  Constitution 
of  the  United  States  and  abjuring  foreign  allegiance,  see  Eev.  Stat.,  sec- 
tion 21G5,  subd.  2;  as  to  making  proof  of  five  years'  residence  in  the 
United  States  and  one  year  in  a  State  or  Territory,  and  of  good  moral 
character,  etc.,  ihid.^  subd.  3;  and  as  to  renouncing  any  title  of  nobility, 
ibid.,  subd.  4. 

That  declaration  of  intention  was  not  required,  but  certain  substitute 
evidence  might  be  accepted,  from  persons  who  resided  here  between 
June,  1798,  and  June,  1812,  see  .Kev.  Stat.,  section  2105,  subd.  G;  and  so 
of  aliens  honorably  discharged  from  the  military  service,  section  2100; 
or  from  minor  residents,  section  2107. 

The  declaration  of  intention  to  become  a  citizen  of  the  United  States, 
required  l)y  Bev.  Stat.,  section  2105,  may  be  made  by  an  alien  before  the 

345 


^^  174.]    CITIZENSHir,  NATURALIZATION,  A-^L)  ALIEJS'AGE.    [ciIAr.  Vtl. 

clerk  of  any  of  the  courts  uained  in  said  section,  and  all  such  declara- 
tions heretofore  made  before  auj'  such  clerk  are  hereby  declared  as  legal 
and  valid  as  if  made  before  one  of  the  courts  named  in  said  section. 

Act  of  Jan.  25,  187G,  c.  4,  19  Stat.  L.,  2. 

"A  vessel  is  not  entitled  to  be  documented  as  a  vessel  of  the  United 
States,  or,  if  so  documented,  to  the  benefits  thereof,  if  owned,  in  whole 
or  in  part,  by  any  person  naturalized  in  the  United  States  and  residing 
for  more  than  one  year  in  the  country  from  wliich  he  originated,  or  for 
more  than  two  years  in  any  foreign  country,  unless  in  the  capacity  of  a 
consul  or  other  public  agent  of  the  United  States." 

Treasury  Regulations,  1884,  p.  5;  Rev.  Stat.,  ^  4134.     See  infra,  $$  468  ff. 

The  burden  of  proving  naturalization  is  on  a  party  setting  up  the  citi- 
zenship of  a  person  who,  born  abroad,  removed  to  and  died  in  the  United 
States. 

Hauenstein  v.  Lynbam,  100  U.  S.,  483. 

A  court  of  record  without  a  clerk  or  prothonotarj-,  or  other  recording 
othcer  distinct  from  the  judge  of  such  court,  is  not  comiietent  to  receive 
an  alien's  preliminary  declaration  of  his  intention  to  become  naturalized. 

Ex  parte  Gregg,  2  Curtis,  98;  3  Liv.  L.  Mag.,  141;  7  L.  Rep'r,  N.  S.,  491. 

Under  Kev.  Stat.,  section  2165,  allowing  naturalization  before  "any 
court  of  any  of  the  States  having  common  law  jurisdiction  and  a  seal  and 
a  clerk,"  it  is  not  necessary  that  the  court  should  have  full  and  complete 
common  law  jurisdiction.  If  a  court  may  exercise  any  part  of  common 
law^  jurisdiction,  that  is  enough.  (8  Mete,  1G8;  2  Curt.,  98;  50  N.  II., 
245;  39  Car.,  98;  3  Pet.,  433,  440.)  The  city  court  of  Yonkers,  2T.  Y., 
can  naturalize. 

U.  S.  V.  Power,  14  Blatcb.,  223. 

Evidence  of  conviction  of  crime  more  than  live  years  before  applica- 
tion for  naturalization,  but  after  the  arrival  of  the  applicant  at  this 
country,  will  bar  naturalization. 

Spencer  in  re,  5  Sawy.,  195. 

In  McCoppin's  case  (5  Sawyer,  630)  the  following  opinion  was  given 
by  Mr.  Justice  Field  : 

"  This  is  an  application  on  the  part  of  Mr.  McCoppin  to  this  court 
'to  renaturalize  him  if,  in  its  judgment,  his  former  naturalization  is  de- 
fective or  open  to  question.' 

"  It  appears  that  on  the  12th  of  December,  1864,  the  applicant  was 
admitted  as  a  citizen  by  the  district  court  of  the  United  States  for  this 
district.  The  record  of  the  proceeding  recites  that  the  applicant  at  the 
time  made  a  declaration  of  his  intention  to  become  a  citizen,  and  proved 
by  the  oaths  of  P.  H.  Cannavan  and  Lafayette  Maynard,  citizens  of  the 
United  States,  his  residence  within  the  United  States  for  the  previous  five 
years,  and  for  the  three  years  next  preceding  his  arrival  at  the  age  of 
twenty -one  years,  and  his  residence  in  California  for  one  year,  and  that 

346 


CHAP.  VII.]        NATUEALlZA-TION:    PROCESS    AND   PROOF.  [§174. 

diiring  that  time  he  bad  behaved  as  a  man  of  good  moral  cbaracter,  at- 
taclied  to  the  principles  of  the  Constitntion  of  the  United  States,  and 
well  disposed  to  tbe  good  order  and  happiness  of  the  same,  and  that  he 
took  tbe  enstomary  oath  to  support  tbe  Constitution  and  renounce  all 
allegiance  and  fidelity  to  every  foreign  power. 

"The  applicant  states  that  he  was  born  in  Ireland  on  tbe  4th  of  July, 
1834,  and  at  the  time  be  made  bis  application  to  be  admitted  as  a  citi- 
zen be  was  under  the  impression  that  he  bad  arrived  in  tbe  United 
States  in  1852 ;  but  in  this  respect  he  is  now  satisfied  he  was  mis- 
taken, and  that  be  arrived  in  1853  ;  that  his  father  arrived  at  the  same 
time  and  afterwards  became  a  citizen;  that  he  himself  declared  his  in- 
tention to  become  a  citizen  in  the  court  of  common  pleas,  for  the  city 
and  county  of  jSTew  York,  on  tbe  18th  of  June,  1857,  and  produces  a 
certified  copy  of  the  declaration ;  that  subsequently  he  was  advised,  and 
for  some  years  believed,  that  he  was  entitled  to  citizenship  by  reason 
of  his  nonage  at  tbe  time  of  bis  arrival  in  tbe  United  States  and  tbe 
subsequent  naturalization  of  bis  father ;  and  that  when  informed  of  bis 
error  in  this  particular,  be  made  formal  application  for  admission  to 
the  district  court. 

"Tbe  application  in  this  case  is  an  unusual  one,  but,  under  the  cir- 
cumstances, a  very  proper  one,  though  we  think  if  tbe  district  court 
were  in  sess'on,  that  it  might  with  more  propriety  have  been  made  to 
that  court. 

"  The  applicant  is  the  mayor  of  tbe  city  of  San  Francisco,  and  his  citi- 
zenship is,  therefore,  a  matter  of  public  interest.  Tbe  law  implies  that 
tbe  oflicers  of  the  municipality  are  citizens  of  the  United  States,  and  it 
was  certainly  under  the  belief  that  the  applicant  was  a  citizen,  that  he 
received  the  suffrages  of  tbe  people  of  tbe  city,  and  was  installed  into 
ofiBce.  If,  therefore,  the  proceeding  by  which  he  claims  his  citizenship 
is  invalid  or  open  to  question,  it  is  quite  natural  that  he  should  desire 
that  a  new  proceeding  may  be  taken  to  establish  his  citizenship  beyond 
a  doubt.  Xo  such  proceeding,  however,  is  necessary.  Tbe  record  of 
naturalization  in  his  case  is  perfect  and  the  judgment  valid.  Its  va- 
lidity and  efficacy  are  in  no  respect  impaired  by  the  inaccurate  state- 
ment in  the  recitals  respecting  the  three  years'  residence  in  tbe  United 
States  of  the  applicant  previous  to  his  attaining  the  age  of  twenty-one. 
The  recitals  constitute  no  part  of  the  judgment,  and  whether  correct  or 
otherwise,  is  immaterial.  Tbe  court  was  satisfied  at  tbe  time  of  tbe  suf- 
ficiency of  the  evidence  presented  to  justify  the  admission  of  the  ajipli- 
cant  and  pronounced  its  judgment  accordingly. 

"  Undoubtedly  tbe  court  might,  in  a  proper  case,  set  aside  its  judgment 
admitting  a  party  to  citizen.sbip,  if  the  party  was  not  at  the  time  enti- 
tled to  admission  and  the  court  bad  reason  to  believe  that  it  bad  been 
intentionally  deceived.  But  in  this  case  there  is  no  ground  to  suppose 
any  deception  was  intended,  or  for  any  imputation  upon  the  motives  of 
tlie  applicant.     He  was  at  the  time  entitled  to  be  admitted  as  a  citizen 

347 


^N  174(/.]  CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.   [rjlAP.  MI. 

Oil  Other  grouud.s.  He  bad  declared  liis  iiiteutiou  to  become  a  citizen  iu 
one  of  the  courts  of  record  iu  tbc  city  of  i!^ew  York  seveu  years  before, 
aud  bad  resided  iu  tbe  Uuited  States  for  five  years.  Tbis  bitter  fact 
was  establisbed  at  tbe  time  before  tbe  district  court  aud  is  stated  in 
tbe  record.  Upou  these  facts  aud  tbe  other  matters  as  to  character  and 
attachment  to  tbe  principles  of  the  Constitution,  proved  by  the  witnesses 
present,  be  could  have  been  as  readily  admitted  as  upon  tlie  grounds 
stated." 

(3)    JUDGMEXT    OK,    CANNOT    BE    IMPEACHED    COLLATERALLY,     BUT  IF    FRAUDULENT 
MAY   BE   REPUDI.YTED   BY   GOVERNMENT. 

§  174a. 

When  a  naturalization  certificate  shows  error  on  its  f-Ace,  and  when, 
on  applying  to  the  clerk  of  the  court  granting  it,  it  appears  to  have  been 
granted  erroneousl}',  it  will  be  treated  as  a  nullity  by  the  Department. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Vroom,  May  23,  18o4.      MSS.  lust,,  Prussia. 

"Cautious  scrutiny  is  enjoined  in  such  cases,  because  evidence  has 
been  accumulating  in  this  Department  for  some  years  that  many  aliens 
seek  naturalization  in  the  United  States  without  any  design  of  subject- 
ing themselves  by  permanent  residence  to  the  duties  and  burdens  of 
citizenship,  and  solely  for  the  purpose  of  returning  to  their  native  coun- 
try and  fixing  their  domicil  and  pursuing  business  therein,  relying  on 
such  naturalization  to  evade  the  obligations  of  citizenship  to  the  coun- 
try of  their  native  allegiance  and  actual  habitation.  To  allow  such  pre- 
tensions would  be  to  tolerate  a  fraud  upon  both  the  Governments,  en- 
abling a  man  to  eujoy  the  advantages  of  two  nationalities  and  to  escape 
tbe  duties  and  burdens  of  each." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Motley,  Oct.  14,  1869.     MSS.  lust.,  Gr.  Brit. 

"The  record  of  naturalization  ought  certainly  to  be  received  as  prima 
facie  evidence  of  the  facts  which  it  recites.  It  is  not,  however,  conclu- 
sive. Upon  this  point  I  give,  for  your  information  and  guidance,  the 
following  extract  from  the  opinion  of  tbe  Attorney-General,  under  date 
of  .January  21,  1871,  upon  the  case  of  a  naturalized  citizen  of  German 
birth,  submitted  to  this  Department  by  our  minister  to  Berlin  : 

'"He  was  naturalized  in  the  United  States  district  court  for  Con- 
necticut on  the  27th  day  of  March,  18G9.  The  record  recites  that  he 
had  resided  constantly  iu  the  United  States  for  more  than  five  years. 
If  this  recitation  were  conclu.sive,  bis  right  to  protection  under  the 
treaty  would  be  established.  The  record  establishes  the  general  fact 
of  his  naturalization  and  of  bis  right  to  be  recognized  here  as  an  Amer- 
ican citizen  in  all  domestic  transactions.  But  recitations  in  the  record 
of  matters  of  fact  are  binding  only  upon  parties  to  the  proceedings  and 
their  privies.  The  Government  of  the  United  States  was  no  party,  and 
stands  in  privity  with  no  party,  to  these  proceedings;  and  it  is  not  in 
348 


CHAP.  VII.]  NATURALIZATION:    IMPEACHMENT    OF.  [§  174a. 

the  power  of  Mr,  Stern  by  erroueoiis  recitatious  in  ex  parte  proceedings 
to  conclude  the  Government  as  to  matters  of  fact. 

"'The  record  also  recites  that  he  had  enlisted  in  the  Army  of  the 
United  States  in  18G5,  and  had  been  honorably  discharged  the  same 
year.  This  fact  has  do  bearing  upon  the  matter  in  hand,  because  nat- 
uralization, unless  accompanied  by  a  five-years'  residence  in  the  adopted 
country,  confers  no  rights  under  the  treaty. 

"  'Hence  I  am  of  opinion  that  Mr.  Stern,  though  regularly  natural- 
ized in  the  United  States,  not  having  had  an  uninterrupted  residence 
of  five  years  here,  is  not  entitled  to  the  immunities  guaranteed  by  the 
treaty  with  North  Germany  of  1868.' 

"I  have  only  to  add  that  in  the  case  to  which  the  above  extract  re- 
lates the  evidence  impeaching  the  recitals  in  the  record  of  naturaliza- 
tion was  derived  by  Mr.  Bancroft  from  the  deliberate  admissions  of  the 
party  himself,  corroborated  by  the  statements  of  others  cognizant  of 
fact." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wing,  Apr.  6,  1871.    MSS.  Inst.,  Ecuador. 

"  It  is  deemed  important  to  call  your  attention  to  the  laws  and  foreign 
ofl&ce  regulations  of  the  Mexican  Government  in  regard  to  the  matricu- 
lation, so-called,  of  foreigners  in  that  country,  which  cannot  be  acqui- 
esced in  by  this  Government.  It  seems  that  a  distinction  is  made 
between  native  and  naturalized  citizens  of  the  country  who  may  seek 
matriculation.  The  passport,  say  of  this  Department,  is  respected  when 
issued  to  those  born  here,  but  the  Mexican  Government  assumes  the 
right  to  inquire  into  the  authenticity  of  certificates  issued  to  naturalized 
citizens  of  the  United  States,  and,  therefore,  will  not  respect  the  pass- 
ports of  this  Department  issued  to  such  citizens.  In  this  that  Govern- 
ment may  be  regarded  as  showing  a  want  of  comity,  at  least,  which  was 
not  to  have  been  expected.  It  is  possible,  however,  that  the  distrust 
shown  as  to  our  certificates  of  naturalization  may  have  sprung  from  an 
impression  that  they  are  carelessly  issued  without  due  regard  to  the 
facts  stated  on  their  face.  This  distrust  is  believed  to  be  quite  un- 
founded, and  to  have  very  few  instances  in  its  support,  and  those  mainly 
arising  from  such  accidents  as  are  inseparable  under  the  best  system 
from  the  multiplicity  of  naturalization  cases. 

"  A  naturalization  of  a  foreigner  in  the  United  States  is  the  solemn 
act  of  a  court  of  record.  As  such,  no  foreign  Government  can  rightfully 
question  its  sufficiency  or  inquire  into  the  facts  upon  which  it  may  have 
been  based.  A  copy  of  the  regulations  of  this  Department  in  regard  to 
passports  is  lierewith  transmitted.  It  will  be  seen  from  them  that  the 
greatest  care  is  taken  to  prevent  imposition  by  persons  asking  for  pass- 
ports as  citizens.  In  the  case  of  naturalized  citizens,  the  presentation 
of  the  certificate  of  naturalization  is  required.  The  passport  on  its  face 
does  not  make  any  distinction  between  native  and  naturalized  citizens, 
an<l  it  is  conceived  that  no  foreign  Government  can  without  discourtesy, 

340 


§  174«.J  CITIZENSHIP,  NATURALIZATION,  A^'D  ALIENAGE.  [CIIAP.  VII. 

at  least,  to  the  bead  of  tliis  DopartmeDt,  attempt  to  make  such  a  dis- 
tinction. 

"  You  will  consequeutly  address  a  remonstrance  and  protest  upon  this 
subject  to  the  Mexican  minister  for  foreign  affairs. 

"  It  may  be  said  further  that  the  law  and  regulations  adverted  to  seem 
to  ignore  the  fact  as  to  the  largo  number  of  persons  in  the  United  States 
who  were  naturalized  by  the  treaty  of  Guadalupe-Hidalgo.  This  Gov- 
ernment has  no  disposition  to  assert  rights  of  citizenship  for  any  who 
may  not  lawfully  be  entitled  to  them.  It  cannot,  however,  allow  any 
foreign  Government  to  sit  in  judgment  upon  that  question." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Nelson,  Feb.  13,  1872.     JISS.  Inst.,  Mexico;  For. 
Eel.,  1872.    As  to  matriculation  8ee  further,  supra,  $  172a. 

Prosecutions  may  be  directed  for  perjury  against  parties  making  false 
oath  to  naturalization  papers. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Williams,  Nov.  19,  1872.     MSS.  Dora.  Let. 

''I  have  again  to  call  the  attention  of  Congress  to  the  unsatisfactory 
condition  of  the  existing  laws  with  reference  to  expatriation  and  the 
election  of  nationality.  Formerly,  amid  conflicting  opinions  and  decis- 
ions it  was  difficult  to  exactly  determine  how  far  the  doctrine  of  per- 
petual allegiance  was  applicable  to  citizens  of  the  United  States.  Con- 
gress by  the  act  of  the  L'Tth  of  July,  1808,  asserted  the  abstract  right 
of  expatriation  as  a  fundamental  principle  of  this  Government.  ISTot- 
withstanding  such  assertion,  and  the  necessity  of  frequent  application 
of  the  principle,  no  legislation  has  been  had  defining  what  acts  or 
formalities  shall  work  expatriation,  or  when  a  citizen  shall  be  deemed 
to  have  renounced  or  to  have  lost  his  citizenship.  The  importance  of 
such  definition  is  obvious.  The  representatives  of  the  United  States  in 
foreign  countries  are  continually  called  upon  to  lend  their  aid  and  the 
protection  of  the  United  States  to  persons  concerning  the  good  faith  or 
the  reality  of  whose  citizenship  there  is  at  least  great  question.  In 
some  cases  the  provisions  of  the  treaties  furnish  some  guide;  in  others 
it  seems  left  to  the  person  claiming  the  benefits  of  citizenship,  while 
living  in  a  foreign  country,  contributing  in  no  manner  to  the  perform- 
ance of  the  duties  of  a  citizen  of  the  United  States,  and  without  inten- 
tion at  any  time  to  return  and  undertake  those  duties,  to  use  the  claims 
to  citizenship  of  the  United  States  simply  as  a  shield  from  the  per- 
formance of  the  obligations  of  a  citizen  elsewhere.  *  *  *  Frequent 
instances  are  brought  to  the  attention  of  the  Government  of  illegal  and 
fraudulent  naturalization,  and  of  the  unauthorized  use  of  certificates 
thus  improperly  obtained.  In  some  cases  the  fraudulent  character  of 
the  naturalization  has  appeared  upon  the  face  of  the  certificate  itself; 
in  others,  examination  discloses  that  the  holder  had  not  complied  with 
the  law;  and  in  others,  certificates  have  been  obtained  where  the  per- 
sons holding  them  not  only  were  not  entitled  to  be  naturalized,  but  had 
not  even  been  within  the  United  States  at  the  time  of  the  pretended 
350 


CHAP.  VII.]  NATURALIZATION:    IMPEACHMENT    OF.  [§  174a. 

naturalization.  Instances  of  each  of  these  classes  of  fraud  are  discov- 
ered at  our  legations,  where  the  certificates  of  naturalization  are  pre- 
sented, either  for  the  purpose  of  obtaining  passports  or  in  demanding 
the  protection  of  the  legation.  When  the  fraud  is  apparent  on  the  face 
of  such  certificates  they  are  taken  up  by  the  representatives  of  the 
Government  and  forwarded  to  the  Department  of  State.  But  even  then 
the  record  of  the  court  in  which  the  fraudulent  naturalization  occurred 
remains,  and  dui)licate  certificates  are  readily  obtainable.  Upon  the 
l)resentation  of  these  for  the  issue  of  passports,  or  in  demanding  pro- 
tection of  the  Government,  the  fraud  sometimes  escapes  notice,  and 
such  certificates  are  not  infrequently  used  in  transactions  of  business 
to  the  deception  and  injuiry  of  innocent  parties.  Without  placing  any 
additional  obstacles  in  the  way  of  the  obtainment  of  citizenship  by  the 
worthy  and  well-intentioned  foreigner  who  comes  in  good  faith  to  cast 
his  lot  with  ours,  I  earnestly  recommend  further  legislation  to  punish 
fraudulent  naturalization  and  to  secure  the  ready  cancellation  of  the 
record  of  every  naturalization  made  in  fraud." 

President  Graut,  Sixth  Annual  Message,  1874. 

''I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  31st 
ultimo,  inclosing — suh petitione  remissionis — the  certificates  of  naturali- 
zation as  citizens  of  the  United  States  of  .Jacob  Kastellan  and  Herman 
Kastellan,  former  subjects  of  Prussia. 

"The  certificates  bear  dates, respectively,  the  12th  of  January  and  the 
13th  of  February,  1871,  and  your  note  conveys  the  information  that  in 
the  same  year,  1871,  the  Messrs.  Kastellan  returned  to  Prussia,  and  set- 
tled at  Koshmin,  in  the  province  of  Posen,  their  native  place. 

"It  appears,  also,  that  after  the  return  of  the  brothers  Kastellan  to 
Koshmin  certain  inquiries  were  instituted  by  the  local  authorities  of 
that  place  in  relation  to  their  citizenship,  and  that  in  response  to  the 
inquiries  Jacob  Kastellan  stated  that  he  received  his  discharge  as  a 
Prussian  citizen  from  the  Government  of  Posen  in  1866,  and  left  for  the 
United  States  in  the  mouth  of  May  of  that  year;  that  Herman  declared 
that  he  received  his  discharge  from  the  same  authority  in  1867,  and  that 
he  left  for  the  United  States  in  the  same  year;  and  you  further  state 
that  official  inquiry  made  at  the  Government  of  Posen  verified  the  cor- 
rectness of  these  statements  as  to  the  date  of  the  respective  discharges, 
Jacob  Kastellan  having,  as  it  is  alleged,  received  his  on  the  20th  of 
February,  1866,  and  that  of  Herman  having  been  granted  on  the  6th  of 
May,  1867. 

"These  subsequent  statements  and  facts  appearing  to  be  incompati- 
ble with  the  declaration  of  the  certificates  to  the  eflcct  that  each  of  the 
parties  in  question  had  resided  in  the  United  States  five  years  previous 
to  his  naturalization,  you  desire  to  be  informed,  first,  whether  the  certifi- 
cates are  vali«l  iKifore  the  laws  of  the  United   States,  and,  second, 

351 


§  174a.]  CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.  [CIIAP.  VII. 

whether  ou  the  strength  of  these  documents  Jacob  aud  Herman  Kas- 
telhm  are  recognized  by  this  Government  as  American  citizens. 

"These  inquiries  involve  a  question  of  the  gravest  judicial  character. 
The  two  papers  which  I  had  the  honor  to  receive  with  your  note  are 
certificates  of  regular  decrees  puri)orting  to  have  been  rendered  by 
courts  of  general  jurisdiction,  and  are  accompanied  with  the  ordinary 
evidence  recognized  by  the  laws  of  tlie  United  States  as  attesting  the 
genuineness  of  solemn  documents  emanating  from  such  tribunals;  they 
are  received  as  verities  in  all  other  courts  of  the  United  States  and  of 
the  several  States,  and  accepted  with  like  credit  by  the  executive 
branch  of  the  Government. 

"  It  appears,  moreover,  that  these  certificates  expressly  state  that  the 
fact  of  the  required  previous  residence  was  proved  to  the  satisfaction 
of  the  court,  and  it  will  be  remembered  that  the  law  requires  proof  to 
be  furnished  in  such  cases  by  the  oath  of  tlic  party  and  other  sworn 
testimony  in  corroboration  thereof. 

''AVhat  the  i)rccise  evidence  submitted  in  the  case  under  considera- 
tion may  have  been  this  Department  is  not  informed,  but  the  presump- 
tion of  correctness  and  regularity  which  obtains  in  relation  to  i)roceed- 
ings  in  judicial  tribunals,  under  the  laws  of  the  United  States,  is  equally 
applicable  to  naturalization  proceedings,  and  applies  to  them  with  full 
force. 

"  By  the  decree,  therefore,  of  a  competent  conrt,  after  a  hearing  upon 
sworn  testimou3^  and  with  the  parties  before  the  court,  it  has  been  ad- 
judged that  these  applicants  for  citizenship  had  complied  with  the  law, 
as  to  residence  and  otherwise,  and  that  they  were  legally  admitted  to 
citizenship. 

"Such  an  adjudication  affects  the  rights  and  property  of  individuals 
and  their  children,  and  may  seriously  affect  a  change  in  the  rights  or 
interest  of  third  parties. 

"  To  assume  to  question  the  legality  or  binding  force  of  such  a  decree 
upon  statements  afterward  made  by  the  parties  or  obtained  from  other 
sources  would  practically  amount  to  the  annulling  of  such  decree  affect- 
ing all  these  classes  of  persons,  upon  statements  not  under  oath,  taken 
ex  i)arte,  and  without  a  hearing  on  the  question. 

"  If  the  political  department  of  the  Government  may,  from  time  to 
time,  pass  upon  such  questions  according  to  the  apparent  credibility  of 
the  particular  evidence  offered  to  impeacli  the  decree,  or  the  varying 
statement  of  an  interested  party,  no  uniformity  of  decision  or  security 
for  acquired  rights  could  exist. 

"In  view  of  all  these  considerations,  I  have  the  honor  to  inform  you 
that  under  the  circumstances,  and  in  the  case  you  state,  certificates  of 
naturalization,  valid  on  their  face  and  founded  on  the  decree  of  a  com- 
petent court,  cannot  be  questioned  except  through  judicial  i)roceedings 
instituted  for  the  purpose,  or  in  whicli  the  correctness  of  the  facts  for- 
merly passed  upon  niay  properly  be  adjudicated,  and  that  it  is  not 
352 


CHAP.  VII. J  NATURALIZATION:    IMPEACHMENT    OF.  [§  174a. 

witliiu  the  province  of  the  political  department  of  tlie  Government  to 
anticipate  what  would  be  the  result  of  a  judicial  inquiry  into  the  ques- 
tion." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  ScHozer,  Jan.  8,  1875.     MSS.  Notes,  Germ, ; 
For.  Rel.,  1875. 

"  Since  the  date  of  instruction  No.  C96,  addressed  to  Mr.  I^Iicholas 
Fish,  the  Department  has  taken  the  opinion  of  the  Attorney-General 
upon  the  question  as  to  how  far  a  decree  of  naturalization  made  by  a 
competent  court  may  be  questioned  by  proof  that  all  of  the  legal  re- 
quirements were  not  in  fact  complied  with.    The  question  discussed  in 

that  opinion  has  no  reference  to  this  particular  case,  because,  E 

claimed  to  be  considered  a  citizen  under  the  treaty  of  1868,  which  ex- 
pressly provides  that  naturalization  within  the  meaning  of  that  treaty 
can  only  take  place  after  a  residence  of  five  years  in  the  United  States. 
It  is  suggested,  however,  that  where  relief  is  sought  from  the  German 
Government,  and  the  naturalization  appears  to  have  been  fraudulently 
obtained,  it  would  be  well  to  confine  the  reply  to  a  refusal  to  interfere, 
without  expressing  any  opinion  upon  the  fact  whether  in  any  possible 
aspect,  or  in  view  of  any  other  question  the  person  can  be  regarded  as 
a  citizen." 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Davis,  Aug.  11, 1875.     MSS.  Inst., 
Germ. 

"  I  recommend  that  some  suitable  provision  be  made,  by  the  creation 
of  a  special  court  or  by  conferring  the  necessary  jurisdiction  upon  some 
appropriate  tribunal,  for  the  consideration  and  determination  of  the 
claims  of  aliens  against  the  Government  of  the  United  States  which 
have  arisen  within  some  reasonable  limitations  of  time,  or  which  may 
hereafter  arise,  excluding  all  claims  barred  by  treaty  provisions  or  other- 
wise. It  has  been  found  impossible  to  give  proper  consideration  to 
these  claims  by  the  Executive  Departments  of  the  Government.  Such 
a  tribunal  would  afford  an  opportunity  to  aliens  other  than  British  sub- 
jects to  present  their  claims  on  account  of  acts  committed  against  their 
persons  or  property  during  the  rebellion,  as  also  to  those  subjects  of 
Great  Britain  whose  claims,  having  arisen  subsequent  to  the  9th  day  of 
April,  18G5,  could  not  be  presented  to  the  late  commission  organized 
l)ursuant  to  the  provisions  of  the  Treaty  of  Washington." 
President  Grant,  Seventli  Annual  Message,  1875. 

When  the  question  of  validity  of  a  naturalization  is  in  doubt,  the 
presumption  is  "in  favor  of  the  rights  and  privileges  of  the  citizen." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  Dec.  20,  1875.    MSS.  Inst.,  Germ. 

"  The  number  of  persons  of  foreign  birth  seeking  a  home  in  the  United 
States,  the  ease  and  facility  with  which  the  honest  emigrant  may  after 
the  lapse  of  a  reasojiable  time  become  possessed  of  all  the  privileges  of 
citizenship  of  tlic  (Initcd  States,  and  tlic  frequ(!nt  occasions  wliicli  iu- 

8.  Mis,  l(i;»_vo[,,  II 'J'4'  353 


§  174fl.]  CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.  [CIIAr.  VII. 

duce  such  adopted  citizens  to  retnru  to  the  country  of  their  birth,  ren- 
der the  subject  of  naturalization  and  the  safeguards  which  experience 
has  proved  necessary  for  the  protection  of  the  honest  naturalized  citi- 
zen of  paramount  inii)ortance.  The  very  simplicity  in  the  requirements 
of  law  on  this  question  affords  opportunity  for  fraud,  and  the  want  of 
uniformity  in  the  proceedings  and  records  of  the  various  courts,  and  in 
the  forms  of  the  certificates  of  naturalization  issued,  affords  a  constant 
source  of  ditliculty. 

"I  suggest  no  additional  requirements  to  the  acquisition  of  citizenship 
beyond  those  now  existing,  but  I  invite  the  earnest  attention  of  Con- 
gress to  the  necessity  and  wisdom  of  some  provisions  regarding  uniform- 
ity in  the  records  and  certiQcates,  and  providing  against  the  frauds 
which  frequently  take  place,  and  for  the  vacating  of  a  record  of  natu- 
ralization obtained  in  fraud. 

''These  provisions  are  needed  in  aid  and  for  the  protection  of  the  hon- 
est citizen  of  foreign  birth,  and  for  the  want  of  which  he  is  made  to 
suffer  not  infrequently.  The  United  States  has  insisted  upon  the  right 
of  expatriation,  and  has  obtained  after  a  long  struggle  an  admission  of 
the  principle  contended  for  by  acquiescence  therein  on  the  part  of  many 
foreign  powers  and  by  the  conclusion  of  treaties  on  that  subject.  It  is, 
however,  tut  justice  to  the  Government  to  which  such  naturalized  citi- 
zens have  formerly  owed  allegiance,  as  well  as  to  the  United  States,  that 
certain  fixed  and  definite  rules  should  be  adoi)ted  governing  such  cases 
and  providing  how  expatriation  may  be  accomplished. 

"While  emigrants  in  large  numbers  become  citizens  of  the  United 
States,  it  is  also  true  that  persons,  both  native-born  and  naturalized, 
once  citizens  of  the  United  States,  either  by  formal  acts  or  as  the  effect 
of  a  series  of  facts  and  circumstances,  abandon  their  citizenship  and 
cease  to  be  entitled  to  the  protection  of  the  United  States,  but  continue 
on  convenient  occasions  to  assert  a  claim  to  protection  in  the  absence  of 
provisions  on  these  occasions." 

President  Grant,  Eighth  Annual  Message,  1876.     See  Api).  vol.  iii,  ^  174a. 

"  While  the  decisions  concerning  the  binding  force  of  a  record  of  nat- 
uralization make  it  difficult  to  go  behind  the  record  ;  at  the  same  time, 
whenever  the  Government  is  called  upon  for  its  interposition  in  a  for- 
eign state  on  behalf  of  any  person  claiming  to  be  a  naturalized  citizen, 
the  question  whether,  under  all  the  facts  presented  by  him,  intervention 
should  be  accorded  is  always  open  for  consideration." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Moran,  Feb.  16,  1877.     MSS.  Inst.,  Portugal. 

"  It  certainly  is  not  competent  for  the  Department  of  State,  either  by 
itself  or  through  its  delegated  authority  in  the  commission  (United 
States  and  Spanish  Commission),  to  go  behind  a  judicial  decision  of  a 
court  of  law,  such  as  is  a  certificate  of  naturalization." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Dnrant,  itar.  7,  18T1>.     MSS.  Dom.  Let. 

354 


CHAP.  VII.]  NATURALIZATION:    IMPEACHMENT    OF.  [§  174«. 

Fraud iileut  or  defective  uaturalization  papers  cauiiot  be  made  tbe 
basis  of  diplomatic  interposition. 

Mr.  Evarts  to  Mr.  White,  Dec.  10, 1879.  MSS.  Inst.,  Germ.  See  same  to  same, 
Feb.  1-2, 1880 ;  MSS.  Inst.,  Germ. :  Mr.  Blaine  to  Mr.  Everett,  Oct.  11, 1881 ; 
ibid. :  Mr.  Bayard  to  Mr.  Pendleton,  Oct.  14,  1885 ;  ibid. 

A  certificate  of  naturalization  as  a  citizen  of  tbe  United  States  can- 
not be  impeacbed  for  fraud  before  an  international  commission. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Durant,  Apr.  22, 1881.  MSS.  Dom.  Let.  Same 
to  same,  Nov.  30, 1881 ;  ibid.  See  comments  in  letters  of  Mr.  Frelingliuysen, 
Sec.  of  State,  to  Mr.  Suydam,  Feb.  17,  1882;  Apr.  17,1882;  ibid. 

It  is  not  witbin  tbe  power  of  tbe  Secretary  of  State  to  vacate  a  de- 
cree of  naturalization  issued  by  a  competent  court  of  tbe  United  States. 
Mr.  Blaine,  Sec.  of  State,  to  Mr.  Hamlin,  Dec.  6,  1881.     MSS.  Inst.,  Spain. 

"  In  tbe  opinion  of  tbe  President  tbe  determination  of  tbe  principles 
involving-  political  rigbts,  according  to  wbicb  disputed  cases  of  citizen- 
sbip  arising  before  tbe  commission  are  to  be  decided,  belongs  to  tbe 
respective  Governments,  and  not  to  tbe  commission.  Tbis  position  Spain 
by  ber  protest  bas  clearly  recognized.  Having  tbe  bigbest  respect  for 
tbe  learning  and  ability  of  tbe  accomplisbed  umpire,  tbe  President, 
witbout  at  tbe  time  expressing  any  opinion  as  to  tbe  result  reacbed  in 
tbe  Buzzi  case,  cannot  but  feel  tbat  some  of  tbe  principles  affecting 
American  citizensbip  announced  in  tbe  opinion  in  tbat  case  are  not  in 
barmony  witb  tbe  agreement  and  are  not  sucb  as  be  sbould  concur  in. 

"  Tbere  is  no  power  in  tbis  Department,  and  none  bas  been  conferred 
on  the  commission,  to  examine  into  tbe  good  faitb,  tbat  is,  tbe  motive, 
purpose,  and  object  of  tbe  applicant  in  seeking  naturalization.  Tbe 
only  question  in  each  case  is  wbetber  tbe  person  claiming  to  be  a  nat- 
uralized citizen  bas  been  naturalized.  Tbere  is  no  law  of  tbe  United 
States  requiring  tbe  applicant  to  disclose  tbe  motive  wbicb  induces  bim 
to  cbange  bis  nationality;  neitber  is  tbere  any  power  in  tbis  Depart- 
ment, nor  any  power  conferred  upon  tbe  commission,  to  inquire  wbetber 
tbe  applicant  bas  been  actually  present  in  tbe  United  States  for  five 
years  immediately  preceding  tbe  naturalization.  Tbe  Department  of 
State  bas  no  power  and  has  conferred  on  tbe  commission  no  power  to 
question  tbe  i)roceedings  antecedent  to  tbe  judgment  of  naturalization, 
witb  tbe  single  exception  hereinafter  mentioned,  that  an  investigation 
may  be  made  whether  the  proceedings  were  or  were  not  fraudulent. 

"  Tbe  judgment  of  a  court  granting  to  an  individual  tbe  rigbts  of  citi- 
zen.sbip  is  entitled  to  receive  the  respect  given  to  all  other  judgments 
rendered  by  courts  of  competent  jurisdiction,  and  if  not  impeachable 
for  fraud  is  conclusive  as  to  all  the  facts  necessarily  passed  upon.  ♦  *  * 

"It  sbould  in  tbis  connection  be  further  observed  tbat  tbis  Government 
exercises  a  broad  discretion  in  determining  what  claims  it  will  di|)l()mat- 
ically  present  against  otb('rnali()ns,and  as  its  past  lilstorysbows  il  iicA'er 
bas  lent  its  intluence  in  favor  of  disbonest  claims,  so  we  may  confidently 

355 


§  174rt.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.   [CIIAP.  VII. 

assert  that  it  never  ■will  present  the  claim  of  one  who  has  dishonestly 
imposed  upon  the  courts  of  the  country  and  fraudulently  obtained  a 
judgment  of  naturalization.  A  great  nation  must  be  jealous  of  its  honor, 
and  when  in  behalf  of  an  individual  it  demands  of  another  power  pay- 
ment of  money,  it  should  not  close  it  doors  against  an  investigation  into 
the  right  of  the  claimant  to  take  the  money.  Were  the  case  reversed 
this  Government  could  contend  for  the  right  of  showing  that  the  claim- 
ant was  not  honestly  a  citizen  of  the  nation  presenting  the  claim. 

"  To  the  honestly  naturalized  citizen  is  now  secured  the  full  enjoyment 
of  the  rights  of  a  citizen  of  the  United  States,  even  in  the  country  of  his 
birth,  because  it  is  known  that  this  Government  will  throw  the  aigis  of 
its  protection  only  over  those  entitled  to  it.  Should  we  protect  those 
who  have  by  fraud  obtained  an  apparent  right  of  citizenship,  the  high 
dignity  of  that  privilege  would  be  degraded,  and  the  position  in  foreign 
countries  of  those  who  have  rightfully  and  honestly  obtained  it  would 
be  imperilled. 

"  The  true  rule  to  govern  the  commission  is  that  when  an  allegation  of 
naturalization  is  traversed  and  the  allegation  is  established  2)nma/ac«e 
by  the  production  of  a  certificate  of  naturalization,  or  by  other  competent 
and  sufficient  proof,  it  can  only  be  impeached  by  showing  that  the  court 
which  granted  it  was  without  jurisdiction,  or  by  showing,  in  conformity 
with  the  adjudications  of  the  courts  of  the  United  States  on  that  topic, 
that  fraud  consisting  of  intentional  or  dishonest  misrepresentation  or 
suppression  of  material  facts  by  the  party  obtaining  the  judgment  was 
I)racticed  upon  it,  or  that  the  naturalization  was  granted  in  violation 
of  a  treaty  stipulation  or  of  a  rule  of  international  law." 

Mr.  Frelinglmyscn,  Sec.  of  State  to  Mr.  Iloralin,  Sept.  22,  1832.  MSS.  Inst., 
Spain.  See  Mr.  Frolinghuysen,  Sec.  of  State,  to  Mr.  Snydam,  Dec.  14,  1882. 
MSS.  Dora.  Let. 

"  Under  ordinary  circumstances,  where  a  prima  facie  record  of  citi- 
zenship, both  of  the  father  and  the  son,  appears  in  the  archives  of  the 
legation,  untraversed  by  any  adverse  allegation,  and  where  no  motive 
of  deception  and  fraud  is  apparent,  the  Department  would  be  adverse 
to  throwing  on  the  applicant  the  perhaps  needless  and  inconvenient 
burden  of  proving  that  the  father  actually  and  legitimately  acquired 
the  status  of  a  citizen  of  the  United  States." 

Mr.  Frelinghuyscn,  Sec.  of  State,  to  Mr.  Langston,  Aug.  13,  1883.  MSS.  lust., 
Ilayti. 

The  United  States  Government  will  not  make  naturalization  papers 
which  are  on  their  face  fraudulent  the  basis  of  a  claim  on  a  foreign  sov- 
ereign. 

Mr.  Bayard,  Scc.of  State,  to  Mr.  Frauds,  May  20,  1885.  MSS.  Inst.,  Austria; 
For.  Rel.,  1885. 

Under  the  act  of  17'J5  (1  Stat.  Jj-,  414,  repealed),  the  administration  of 
the  oath  of  allegiance  amounts  to  a  jndf^ment  of  the  court  for  the  i\,(\- 

36G 


CiUP.  VII.]  DECLARATION  OF  INTENTION.  [§  175. 

mission  of  the  applicant  to  the  rights  of  a  citizen,  and  implies  that  all 
prerequisites  had  been  complied  with. 

Campbell  r.  Gordon,  6  Crancb,  17G. 

Naturalization  is  limited  by  statute  to  courts  of  record,  and  a  nat- 
uralization judgment  of  such  courts,  if  entered  on  record  in  due  form, 
proves  itself,  and  has  the  same  conclusiveness  as  other  judgments  of 
courts  of  record. 

Spratt  V.  Spratt,  4  Pet.,  393;  The  Acorn,  2  Abb.  U.  S.,  434. 

The  thirteenth  section  of  the  act  of  1813,  prescribing  penalties  for 
fraudulent  naturalization,  &c.,  was  repealed  by  the  act  of  July  14, 1870, 
which  substituted  other  penalties. 

U.  8.  V.  Tynen,  11  Wall.,  83. 

Where  the  question  is,  under  the  treaty  with  Germany,  whether  there 
has  been  an  uninterrupted  residence  in  the  United  States,  the  recital 
in  naturalization  proceedings  is  not  conclusive. 

13  Op.,  376,  Akerraau,  1871.     See  14  Op.,  154,  Williams,  1872. 

Naturalization  in  the  United  States,  without  an  intent  to  reside  per- 
manently therein,  but  with  a  view  of  residing  in  another  country,  and 
using  such  naturalization  to  evade  duties  and  responsibilities  to  which, 
without  it,  he  would  be  subject,  ought  to  be  treated  by  this  Government 
as  fraudulent. 

14  Op.,  295,  Williams,  1873. 

The  record  showing  that  L.  was  admitted  to  citizenship  July  10, 1873, 
by  a  State  court  having  jurisdiction,  and  it  being  offered  to  show  by  a 
copy  of  the  registry  of  births  at  Hamburg,  where  he  was  born,  that  he 
was  born  February  22,  1853,  it  was  held  that  as  the  court  having  juris- 
diction had  found  that  the  facts  and  conditions  to  entitle  him  to  citi- 
zenship existed,  such  finding  had  the  effect  of  a  judgment,  and  was 
was  conclusive. 

14  Op.,  509,  Williams,  1874. 

As  to  citizenship  as  a  basis  of  claims  against  a  foreign  Government,  see  ivfra, 
$215. 

(4)  Mere  declaration  op  intentiox  insufficient. 

§175. 

*'  From  the  statement  of  the  case  it  is  quite  evident  that  Koszta  was 
not,  at  the  time  he  was  kidnapped,  a  subject  of  the  Emperor  of  Austria, 
lie  had  withdrawn  from  his  allegiance  to  the  Austrian  Government,  and 
the  course  of  that  Government  towards  hiui  was  at  least  an  implied  con- 
sent to  hi.s  withdrawal.  By  acts  concurred  in  by  both  parties,  the  ties 
of  allegiance  were  severed.  Uc  had  renounced  on  his  part,  as  Austria 
had  on  hers,  all  claims  to  reciprocal  rights  or  duties  resulting  from  their 
former  political  connection  as  sovereign  and  subject,  and  they  stood 

357 


§175.]     CITIZENSITIP,  NATURALIZATION,  AND  ALIENAGE.     [riIAl>.  Vtl. 

towards  each  other  as  il'  no  such  connectiou  liad  ever  existed.  If,  how- 
ever, there  had  been  some  foundation  for  a  ehiini  b}'  Austria,  as  under 
the  obligation  of  allegiance  to  her,  when  he  was  seized  at  Smyrna,  the 
case  would  not,  perhaps,  have  been  much  changed ;  it  would  only  have 
afiForded  some  better  pretext  for  the  outrage  than  now  exists,  but  would 
not  have  altered  its  character  or  legal  consequences.  While  at  Smyrna, 
Austria  had  no  jurisdiction  over  the  persdn  of  Koszta,  nor  do  I  under- 
stand that  there  was  at  the  time  of  the  seizure  any  pretense  that  it 
Avas  made  by  Austrian  authority  in  any  legal  form,     *     *     * 

"  Whatever  may  have  been  Koszta's  citizenship  (not  being  a  subject 
of  the  Ottoman  Porte)  lie  was,  while  at  Smyrna,  a  Frank  or  sojourner, 
and  might  place  himself  under  any  foreign  protection  he  chose  to  select, 
and  the  Turkish  laws  respect  the  rights  he  thus  acquired.  He  did  place 
himself  under  the  protection  of  an  American  consul  at  Smyrna,  and  our 
legation  at  Constantinople,  and  was  at  once  clothed  with  the  nationality 
of  the  protecting  power,  and  consequently  became  entitled  to  be  re- 
garded and  respected  while  in  that  situation  as  a  citizen  of  the  United 
States.  The  American  consul  at  Smyrna  did  nothing  more  than  his 
duty  iu  claiming  for  him  the  protection  due  to  one  of  our  citizens,  and 
Captain  Ingraham  is  justitied  by  his  Government  for  using  the  means 
he  did  for  procuring  his  release  from  illegal  imprisonment." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Marsh,  Aug.  26,   1853.     MSS.  lust.,  Turkey. 
Sec  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Grain,  Jau.  28,  1886.     MSS.  Doui.  Let. 

"Martin Koszta,  a  Hungarian  by  birth,  came  to  this  country  in  1850, 
and  declared  his  intention,  in  due  form  of  law,  to  become  a  citizen  of 
the  United  States.  After  remaining  here  nearly  two  years,  he  visited 
Turkey.  While  at  Smyrna  he  was  forcibly  seized,  taken  on  board  an 
Austrian  brig  of  war,  then  lying  in  the  harbor  of  that  place,  and  there 
confined  in  irons,  with  the  avowed  design  to  take  him  into  the  domin- 
ions of  Austria.  Our  consul  at  Smyrna  and  legation  at  Constantinople 
interposed  for  his  relea.se,  but  their  efforts  were  ineffectual.  While  thus 
imprisoned.  Commander  Ingraham,  with  the  United  States  ship  of  wiir 
Saint  Louis,  arrived  at  Smyrna,  and,  after  inquiring  into  the  circum- 
stances of  the  case,  came  to  the  conclusion  that  Koszta  was  entitled  to 
the  protection  of  this  Government,  and  took  energetic  and  prompt 
measures  for  his  release.  Under  an  arrangement  between  the  agents 
of  the  United  States  and  of  Austria,  he  was  transferred  to  the  custody 
of  the  French  consul-general  at  Smyrna,  there  to  remain  until  he  should 
be  disposed  of  by  the  mutual  agreement  of  the  consuls  of  the  respective 
Governments  at  that  place.  Pursuant  to  that  agreement  he  has  been  re- 
leased, and  is  now  on  his  AViiy  to  the  United  States.  The  Emperor  of  Aus- 
tria has  made  the  conduct  of  our  officers  who  took  part  in  this  transaction 
a  subject  of  grave  complaint.  PtCgarding  Koszta  as  still  his  subject,  and 
claiming  a  right  to  seize  him  within  the  limits  of  the  Turki.sh  Empire, 
he  has  demanded  of  this  Government  its  consent  to  the  surrender  of 
the  prisoner,  a  disavowal  of  the  acts  of  its  agents,  and  satisfaction  for 
353 


CHAP.  VII.]  DECLARATION    OF    INTENTION.  [§  175 

tbe  alleged  outrage.  After  a  careful  cousicleration  of  tlie  case,  I  came 
to  tlie  conclusion  that  Koszta  was  seized  without  legal  authority  at 
Smyrna  J  that  he  was  wrongfully  detained  on  board  of  the  Austrian 
l>rig  of  war;  that  at  the  time  of  his  seizure  he  was  clothed  with  the  na- 
tionality of  the  United  States,  and  that  the  acts  of  our  officers,  under 
the  circumstances  of  the  case,  were  justifiable,  and  their  conduct  has 
been  fully  approved  by  me,  and  a  comjiliance  with  the  several  demands 
of  the  Emperor  of  Austria  has  been  declined." 

President  Pierce,  First  Annual  Message,  1853.  See  infra,  $  198,  where  the  right 
to  protect  Koszta  is  put  on  the  grounds  of  doraicil. 

Declaration  of  intention  to  become  a  citizen  does  not,  in  the  absence 
of  treaty  stipulations,  so  clothe  the  individual  with  the  nationality  of 
this  country  as  to  enable  him  to  return  to  his  native  land  without  being 
subject  to  all  the  laws  thereof. 

Mr.  Fish,  8ec.  of  State,  to  Mr.  de  Lana,  June  1,  1869.  MSS.  Dom.  Let.  Mr. 
Fish,  Sec.  of  State,  to  Mr.  Bennett,  Dec.  24,  1872 ;  ibid. ;  Mr.  Fish, 
Sec.  of  State,  to  Mr.  Jay,  Apr.  2,  1875.  MSS.  Inst.,  Austria.  Mr.  Freling- 
huyseu,  Sec.  of  State,  to  Mr.  Foster,  Apr.  2,  1883.  MSS.  lust.,  Spaiu.  Mr. 
Frelinghuysen,  Sec.  of  State,  to  Mr.  Fish,  Apr.  23,  1883.  MSS.  Inst.,  Bel- 
gium. Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Randall,  Mar.  14,  1884. 
MSS.  Dom.  Let. 

It  is  Otherwise  when  the  party  making  the  declaration  has  acquired 
a  domicil  in  this  country,  in  which  case  the  Government  of  the  United 
States  will  protect  him  in  all  the  rights  which  the  law  of  nations 
attaches  to  domicil. 

I'riuted  Pers.  lust.  Dip.  Agents,  1885;  infra,  §  198. 

Although  a  mere  declaration  of  intention  does  not  confer  citizenship, 
yet,  under  peculiar  circumstances,  in  a  Mohammedan  or  semi-barbarous 
land,  it  may  sustain  an  appeal  to  the  good  offices  of  a  diplomatic  rep- 
resentative of  the  United  States  in  such  land. 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Do  Leon,  Aug.  18,  1858.  MSS.  Inst.,  Barb. 
Powers.  To  this  effect  is  the  position  taken  by  Mr.  Marcy  in  preceding  ex- 
tracts, at  the  beginning  of  this  section. 

A  declaration  of  intention  to  accept  nationality  may  give  the  declarant 
the  right  to  protection  by  the  United  States  as  against  a  third  sovereign. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Wallace,  Mar.  25,  1884.  MSS.  Inst., 
Turkey.     See  same  to  some,  Apr.  8,  1884  ;  ibid. 

"The  criterion  by  which  Koszta's  and  Burnato's  cases  are  to  be  meas- 
ured in  examining  questions  arising  with  respect  to  aliens  who  have 
declared,  but  not  lawfully  perfected,  their  intention  to  become  citizens 
of  the  United  States,  is  very  simple. 

"When  the  party,  after  such  declaration,  evidences  his  intent  toper- 
feet  the  i)rocess  of  naturalization  by  continued  residence  in  the  United 
States  as  required  by  law,  this  Government  holds  that  it  has  a  right  to 
remonsli'ate  against  any  act  of  the  Government  of  orhflnnl  aUc(]iance 
whereby  the  iMMfcction  of  his  American  citizenship  may  bo  prevented 

359 


V^  170. J     ClTJZENSlIir,  NATriJALlZAllON,  AND  ALIENAGE.    fciTAr.  Vtt. 

by  ibrce,  and  original  jiuisdictioii  over  the  individual  reasserted. 
Koszta  and  Buruato  were  both  resident  in  the  United  States,  and  their 
absence  was  of  that  temporary  character,  amino  revertendi,  which  does 
not  conflict  with  the  continnity  of  residence  required  by  the  statute. 
Koszta  was  arrested  by  the  authorities  of  Austria  in  the  dominions  of 
a  third  state.  Buruato,  who  had  definitely  abandoned  Mexican  domi- 
(Mle,  was  held  for  military  service  in  Mexico  on  the  occasion  of  a  trans- 
ient return. 

"Mr.  Walsh,  however,  as  my  predecessors  have  remarked,  had  given 
no  proof  of  retention  of  American  residence.  On  the  contrary,  imme- 
diately after  his  declaration  of  intention,  he  established  a  commercial 
domicile  in  Mexico  under  circumstances  which  would  have  sufiQced  to 
disrupt  his  continued  residence  in  the  United  States  and  prevent  his 
naturalization  under  the  statute. 

"  By  so  removing  to  Mexico,  he  must  be  deemed  to  have  abandoned 
his  declared  intention  to  become  an  American  citizen." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Mackcy,  Aug.  5,  IbSu.    MSS.  Dom.  Let. 

"So  far  as  political  rights  are  concerned,  a  mere  declaration  of  inten- 
tion to  become  a  citizen  of  the  United  States  would  give  Abdellah  Saab 
no  title  to  claim  the  intervention  of  the  United  States  should  he  return 
to  his  native  land.  If,  however,  he  is  domiciled  in  the  United  States, 
though  not  naturalized,  the  Government  of  the  United  States  would  be 
read}'  to  assert  for  him  any  municipal  rights  which  by  the  law  of  nations 
are  assigned  to  domicile." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Williams,  Oct.  29,  1885.  MSS.  Dom.  Let. 
See  Mr.  Bayard  to  Mr.  Grain,  Jan.  28,  1886;  ihid.  As  to  domicil,  see  infra, 
§  198.  That  widow  and  cliildren  of  declarant  become  citizens,  see  Rev. 
Stat.,  $  2168. 

III.  ABANDONMENT  OF  CITIZENSHIP. 

(1)  Citizenship  may  be  so  forfeited. 

^17G. 

As  to  loss  of  Government  protection  by  this  means,  see  infra,  $  190. 

"  Our  citizens  are  certainly  free  to  divest  themselves  of  that  character 
by  emigration  and  other  acts  manifesting  their  intention,  and  may  then 
become  the  subjects  of  another  power,  and  free  to  do  whatever  the  sub- 
jects of  that  power  may  do." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  G.  Morris,  Aug.  16, 1793.  MSS.  Inst.,  Minis- 
ters.   4  Jeff.  Works,  37. 

The  presumption  of  abandonment  of  nationality  by  long  residence 
abroad  is  rebutted  by  a  proof  that  such  residence  was  that  of  a  mis- 
sionary who  never  intended  to  relinquish  his  nationality  or  his  purpose 
finally  to  return  home. 

Mr.  Everett,  Sec.  of  Sttte,  to  Mr.  Marsh,  Feb.  5, 1853.     MSS.  lust.,  Turkey. 

3fi0 


CtiAP.  VII.]  ABANDONMENT    OF    CITIZENSHIP.  [§  lICj, 

Domicil  ^vitbout  Datiiralization  iu  a  foreign  country  may  preclude  the 
person  so  domiciled  from  claiming  against  such  country  the  diplomatic 
intervention  of  bis  original  sovereign. 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Brauno,  Dec.  7, 1870.  MSS.  Doni.  Let.  Infra,  ^ 
190,  198. 

In  determining  tbe  question  of  the  domicil  of  a  citizen  of  tbe  United 
States  iu  a  foreign  country,  tbe  question  whether  such  citizen  had  com- 
plied with  the  internal-revenue  laws  of  the  United  States  as  to  income 
tax  was  held  in  1870  to  be  a  material  circumstance  to  be  considered. 

Mr.  Fish,  Sec.  of  State,  to  jilr.  Brauno,  Dec.  7, 1870.  MSS.  Dom.  Let. ;  infra,  $  190, 
Mr.  Fisli  to  Mr.  Overmann,  Jan.  13, 1871.  See  also  Mr.  Fisli  to  Mr.  Wilson, 
Dec.  5, 1870 ;  Mr.  Fish  to  Mr.  Hepburn,  Dec.  20, 1870 ;  Mr.  Fish  to  Mr.  Allen, 
Jan.  18, 1871 ;  ibid. 

''An  eminent  predecessor  of  mine  in  this  Department,  iu  an  instruc- 
tion to  a  minister  of  the  United  States  iu  a  foreign  country,  expressed 
tbe  opinion  that  'It  can  admit  of  no  doubt  that  the  naturalization 
laws  of  the  United  States  contemplate  the  residence  in  the  country  of 
naturalized  citizens,  unless  they  shall  go  abroad  iu  the  public  service  or 
for  temporary-  puri)oses.'  In  addition,  the  tests  prescribed  in  a  recent 
instruction  to  another  minister  of  the  United  States  abroad  may  be  ap- 
plied. These  are,  in  substance,  when  and  in  what  assessment  district 
the  returns  required  by  the  internal  revenue  laws  of  the  United  States 
have  been  made  by  the  naturalized  citizen  ;  where  and  to  whom  have 
the  taxes  been  paid?  The  instruction  referred  to  also  says  that  'the 
omission  to  have  made  the  returns  or  to  have  paid  any  tax  would  neces- 
sarily cast  grave  suspicions  upon  the  claim  of  the  party  applying  for 
the  protection  of  a  Government  from  whose  support  he  has  withheld 
the  contributions  required  of  all  the  citizens,  whether  resident  at  home 
or  abroad,  and  if  such  omission  has  been  long  continued  it  will  as  a  gen- 
eral rule  justify  the  refusal  of  a  recognition  of  the  claim  to  i)rotection." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Wing,  Dec.  15, 1870.    MSS.  Inst. ,  Ecuador. 

A  residence  for  a  long  series  of  years  in  a  foreign  land,  coupled  with 
a  non-payment  of  taxes  to  the  sovereign  of  birth  or  naturalization,  may, 
without  formal  change  of  allegiance,  forfeit  a  claim  to  protection  from 
such  sovereign. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Hepburn,  Dec.  20,  1«70.  MSS.  Dom.  Let.  Mr. 
Fish  to  Mr.  Norton,  Dec.  20,  1870;  ibid. 

"In  respect  to  naturalized  citizens  of  tbe  United  States,  resident  in 
Ecuador,  but  not  natives  of  that  country,  who  left  this  country  under 
circumstances  indicating  that  they  obtained  naturalization,  not  with  a 
view  to  permanent  residence  here,  but  for  tbe  purpose  of  chiimiug  tbe 
protection  of  this  Government  in  foreign  countries,  the  reasouiug  and 
tbe  instructions  contained  in  the  circular  of  October  14,  1809,  are  ap- 
]»licable  in  a  general  sense.  They  have  not,  however,  quite  tlie  same 
Ibrce  and  einpliasis  as  in  the  case  of  naturalized  citizens  returning  to 

301 


\^  ITG.'I    CrnZENSlIir,  NATURALIZATION,  AND  ALIENAGE.    [c'lIAP.  VtT. 

the  coiiiitiy  of  tlicir  native  Jillegiance.  There  is  not  the  same  pre- 
sumption that  wWu  tliey  go  to  their  native  hind  it  is  with  the  inten- 
tion of  establishing  an  abiding  doniicil.  Moreover,  the  Government 
under  whose  jurisdiction  they  dwell  cannot  claim,  as  in  the  other  case, 
that  they  revert  to  their  native  allegiance,  but  can  only  claim  that  local 
and  temporary  allegiance  which  every  one  owes  to  the  Government 
whose  protection  he  enjoys." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wiug,  Apr.  G,  1871.    MSS.  lust.,  Ecuador. 
As  to  protection  granted  in  sucli  cases,  see  infra,  ^  190.    As  to  domicil,  see 
infra,  ^  19?. 

A  citizen  of  the  United  States  who,  for  thirty-eight  years  has  resided 
in  a  foreign  country  and  has  during  that  period  in  no  way  contributed 
to  the  su])port  or  maintenance  of  his  own  Government,  cannot  claim  its 
diplomatic  intervention  in  his  behalf. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Niles,  Oct.  30,  1871.     MSS.  Dom.  Let. 

The  purchase  and  continuous  occupancy  of  a  landed  estate  in  a 
foreign  country  forms  strong  proof  of  an  abandonment  of  home  alle- 
giance. 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Ilackctt,  Juue  12,  1873.     MSS.  Dom.  Lot. 

"  In  your  No.  784  you  invite  instructions  from  the  Department  respect- 
ing two  cases,  stated  by  you  in  the  following  language : 

"'  I.  Madam  Pepin  applies,  in  behalf  of  her  son,  a  young  man  eight- 
een years  of  age,  to  have  some  paper  from  the  legation,  stating  that  he 
is  an  American  citizen,  and  is  to  be  protected  as  such.  His  case  is  as 
follows:  John  Pepin,  the  husband  and  father,  was  a  Frenchman  by 
birth.  When  a  young  man  he  emigrated  to  the  United  States,  was 
educated  in  Kentucky,  and  became  a  naturalized  citizen,  residing  in 
Xew  Orleans.  In  1850  he  returned  to  France,  leaving  some  property 
in  iSTew  Orleans,  which  is  still  held  by  his  family,  he  having  died  sev- 
eral years  ago.  After  his  return  to  this  country  he  married  a  French 
woman,  by  whom  he  had  a  daughter,  now  twenty  years  of  age,  and  the 
son  above  spoken  of.  He  never  returned  to  the  United  States  to  live, 
but  made  France  his  residence  up  to  the  time  of  his  death.  The  boy  in 
question  has  never  been  to  the  United  States,  though  the  mother  and 
daughter  went  there  two  years  ago,  and  the  mother  obtained  a  pass- 
port from  the  State  Department  as  an  American  citizen.  She  says  that 
the  boy  got  a  passport  two  years  ago  from  the  United  States  minister 
in  London,  but  that  he  has  lost  it. 

"^11.  A  man  and  his  wife,  Americans  by  birth,  came  to  Paris  forty 
years  ago,  and  have  lived  here  ever  since.  This  has  become  their  per- 
manent home,  and  they  have  never  had  any  intention  of  returning  to 
the  United  States.  Several  of  their  childen  have  been  born  here,  and 
have  never  been  to  the  United  States,  and  never  expect  to  go,  anil  never 
want  to  go.' 

3G2 


CHAP.  VII.]  ABANDONMENT    OF    CITIZEN&HIP.  [§  176. 

"  You  also  state  tbat — 

" '  Many  questions  must  arise  in  regard  to  persons  claiming  to  be  citi- 
zens of  the  United  States.  As  every  Frenchman  is  now  held  to  military 
service,  applications  are  being  made  to  the  legation  by  young  men  who 
have  been  treated  and  considered  as  Frenchmen  to  declare  themselves 
Americans.' 

"  This  seems  to  make  it  advisable  not  only  to  dispose  of  the  particular 
cases  set  forth  in  your  dispatch,  but  also  to  invite  your  attention  to  cer- 
tain general  considerations  which  may  be  useful  in  determining  future 
cases. 

"  The  fourteenth  amendment  to  the  Constitution  declares  that — 

"'All  i^ersous  born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States.' 

"Every  person,  therefore,  who,  in  the  first  place,  is  entitled  to  claim 
the  right  of  citizenship  by  reason  of  birth  within  the  jurisdiction  of  the 
United  States,  or  by  reason  of  naturalization  therein,  whether,  under 
the  laws  of  the  General  Government  or  by  the  operation  of  treaties  for 
the  annexation  of  territory,  and  who,  in  the  second  place,  adds  to  that 
natural  or  acquired  title  the  fact  of  a  i)ersonal  subjection  to  their  juris- 
diction, is  constitutionally  entitled  to  be  recognized  as  a  citizen,  with  all 
the  consequences  which  may  flow  from  such  recognition.  But  the  two 
concurrent  circumstances  must  exist  in  every  case,  in  order  to  make  the 
constitutional  right  complete. 

"  It  is,  however,  by  no  means  to  be  assumed  that  Congress  and  the 
several  legislatures  which  assented  to  the  fourteenth  amendment,  con- 
templated that  a  temporary  withdrawal  of  the  person  of  the  citizen 
from  subjection  to  national  jurisdiction  should  forfeit  the  rights  of  citi- 
zenship. Such  a  construction  would  do  violence  to  common  sense,  to 
the  customs  of  Americans,  who,  from  the  foundation  of  this  Government, 
have  been  in  the  habit  of  residing  in  foreign  countries  and  engaging  in 
commerce  there,  retaining  their  nationality;  and  to  the  general  juris- 
prudence of  nations  which  recognizes  such  a  residence  as  consistent 
with  the  preservation  of  nationality.    *     *     * 

"Congress  did  not  then  [in  the  statute  of  18G8]  define  (nor  has  it 
since  defined)  what  may  constitute  expatriation.  The  Department  is, 
therefore,  in  its  general  instructions,  forced  to  look  elsewhere  for  au 
enumeration  of  the  acts,  which  may  certainly  be  regarded  as  expatria- 
ting a  citizen  of  the  United  States,  so  far  as  to  disqualify  him  from  ap- 
l^ealing  to  the  authorities  of  the  United  States  for  protection. 

"  Mr.  Justice  Marshall,  speaking  for  the  Supreme  Court,  has  said  in 
the  extract  above  quoted,  that  when  a  citizen  '  has  made  himself  a 
Nubject  of  a  foreign  power  his  situation  is  completely  changed.'  Tiiis 
jiidicially-pronounccd  opinion  of  one  of  the  most  illustrious  of  my  prede- 
cessors has  been  and  is  a  recognized  rule  for  the  guidance  of  this  De- 
partment. 

303 


§  176.]    CITIZENSHIP,  NATUKALtJiATlON,  AND  ALIENAGE.    [CRA1\  VJt 

"  This  proposition  is  too  plain  to  need  further  discussion.  There  are 
eases,  however,  resembling  those  referred  to  in  your  dispatch,  in  which 
doubts  may  possibly  arise,  cases  in  which  the  voluntary  expatriation  is 
to  be  inferred,  not  from  an  open  act  of  renunciation,  but  from  other  cir- 
cumstances, as,  for  instance,  a  residence  in  a  foreign  laud  so  constant, 
and  under  such  circumstances,  that  a  purpose  of  a  change  of  allegiance 
may  be  reasonably  assumed. 

"In  regard  to  such  cases,  I  have  to  say  that  the  right  to  be  acknowl- 
edged as  a  citizen  of  the  United  States  must  beheld  as  a  high  privilege 
and  a  precious  right.  When  the  person  who  possesses  it  is  untainted 
by  crime,  or  by  the  suspicion  of  expatriation,  or  by  the  nonfulfillment 
of  the  duties  which  accompany  it,  it  entitles  him  abroad  to  the  recogni- 
tion and  protection  of  a  power  which  is  not  the  least  among  the  powers 
of  the  earth  ;  while  at  home,  under  general  regulations  of  law,  he  may 
l^articipate  in  the  distribution  of  political  rights  and  privileges,  he  may 
enjoy  the  national  guarantees  of  liberty  and  of  protection  to  personal 
property,  and  he  may  share  the  advantages  of  education  and  the  health- 
ful social  and  moral  influences  which  result  from  democratic  institutions. 

"It  is  provided  by  the  act  of  1855  (10  Stat.  L.,  p.  G04)  that  persons 
born  out  of  the  limits  and  jurisdiction  of  the  United  States,  whose 
fathers  at  the  time  of  their  birth  are  citizens  of  the  United  States,  shall 
be  deemed  and  considered  to  be  citizens  of  the  United  States,  provided 
that  the  right  of  citizenship  shall  not  descend  to  persons  whose  fathers 
never  resided  in  the  United  States. 

"  I  will  presently  refer  to  this  proviso. 

"  Within  the  sovereignty  and  jurisdiction  of  the  United  States  the 
persons  contemplated  by  the  act  are  entitled  to  all  the  privileges  of  citi- 
zenship 5  but  while  the  United  States  may  by  law  fix  or  declare  the 
conditions  constituting  citizenship  within  its  own  territorial  jurisdiction, 
and  may  confer  the  rights  of  American  citizenship  everywhere  upon 
persons  who  are  not  rightfully  subject  to  the  authority  of  any  foreign 
country  or  Government,  it  may  be  safely  assumed  that  Congress  did  not 
contemplate  the  conferring  of  the  full  rights  of  citizenship  upon  the  sub- 
ject of  a  foreign  nation  who  had  not  come  within  our  territory,  so  as  to 
interfere  with  the  just  rights  of  such  nation  to  the  government  and 
control  of  its  own  subjects. 

"It  is  a  well  established  ijrinciple  of  jniblic  law  that  the  municipal 
laws  of  a  state  have  no  effect  within  the  limits  of  another  power,  beyond 
such  as  the  letter  may  think  proper  to  concede  to  them. 

"Ko  foreign  state  can,  by  its  municipal  legislation,  release  from  his 
obligation  to  the  United  States  a  person  born  within  its  territory  and 
its  jurisdiction  who  has  continued  from  his  birth  to  reside  therein  ;  and 
while  he  resides  therein,  and  if,  by  the  laws  of  the  country  of  their  birth, 
children  of  American 'citizens  born  in  such  country  are  subjects  of  its 
Government,  the  legislation  of  the  United  States  should  not  be  con- 
strued so  as  to  interfere  with  the  allegiance  which  they  owe  to  the 
3G4 


CHAP.  VII.]  ABANDONMENT    OF    CITIZENSHIP.  [§  176. 

country  of  their  birth  while  they  continue  within  its  territory,  or  until 
they  shall  have  relieved  themselves  of  that  alleg:iance  and  have  assumed 
their  rights  of  American  citizenship,  in  conformity  with  the  laws  and 
Constitntion  of  the  country,  and  have  brought  themselves  personally 
within  its  jurisdiction. 

"  I  have  above  referred  to  the  proviso  to  the  act  of  1855.  It  is  evi- 
dent from  this  that  the  law-making  power  not  only  had  in  view  the 
limit  (above  referred  to)  to  the  efficiency  of  municipal  law  in  foreign 
jurisdiction,  but  intended  that  a  distinction  be  observed  between  the 
right  of  citizenship,  declared  by  the  act  of  1855,  and  the  full  citizen- 
ship of  persons  born  within  the  territory  and  jurisdiction  of  the  United 
States,  for  those  declared  to  be  citizens  by  the  act  could  not  transmit 
citizenship  to  their  children  without  having  become  residents  within 
the  United  States  ;  the  heritable  blood  of  citizenship  was  thus  associ- 
ated unmistakeably  with  residence  within  the  country,  which  was  thus 
recognized  as  essential  to  full  citizenship. 

"  The  provisions  of  the  fourteenth  amendment  to  the  Constitution 
have  been  considered.  This  amendment  is  not  only  of  more  recent 
date,  but  is  a  higher  authority  than  the  act  of  Congress  referred  to, 
and  if  there  be  any  conflict  between  them,  or  any  difference,  the  Con- 
stitution must  control,  and  that  makes  the  subjection  of  the  person  of 
the  individual  to  the  jurisdiction  of  the  Government  a  requisite  of  citi- 
zenship. 

"  It  does  not  necessarily  follow  from  this  that  the  children  of  Amer- 
ican parents  born  abroad  may  not  have  the  rights  of  inheritance,  and 
of  succession  to  estates,  although  they  may  not  reside  within  or  ever 
come  within  the  jurisdiction  of  the  United  States.  That  question  is 
not  within  the  present  consideration. 

"  But  if  the  citizen,  on  the  one  side,  has  rights  which  he  may  claim 
at  the  hands  of  the  Government,  on  the  other  side  there  are  imperative 
duties  which  he  should  i)erform  toward  that  Government.  If,  on  the 
one  hand,  the  Government  assumes  the  duty  of  protecting  his  rights 
and  his  privileges,  on  the  other  hand  the  citizen  is  supposed  to  be  ever 
ready  to  place  his  fortune  and  even  his  life  at  its  service,  should  the 
public  necessities  demand  such  a  sacrifice.  If,  instead  of  doing  this, 
he  permanently  withdraws  his  person  from  the  national  jurisdiction,  if 
he  places  his  property  Avhere  it  cannot  be  made  to  contribute  to  the 
national  necessities  5  if  his  children  are  born  and  reared  upon  a  foreign 
soil,  with  no  purpose  of  returning  to  submit  to  the  jurisdiction  of  the 
United  States,  then,  in  accordance  with  the  principles  laid  down  by 
(^hief-Justice  Marshall,  and  recognized  in  the  fourteenth  amendment, 
and  in  the  act  of  1808,  he  has  so  far  expatriated  himself  as  to  relievo 
this  Government  from  the  obligation  of  interference  for  his  ])rotcction. 

"The  Executive  Department  of  the  Government  has  had  occasion  to 
consider  this  question  in  negotiating  and  couchnliug  treaties  on  the 
Hubject  of  nniurali/.ation,     Thus  it  lias  been  agreecl  with  Havarin,  with 

305 


§  176.]    CITIZEXSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  Vlf. 

Ilesse,  with  ^Mexico,  with  North  Germany,  antl  with  AViirtemhero;,  that 
the  resiileuee  of  a  naturalized  citizen  in  the  hind  of  his  nativity,  with- 
out intent  to  return  to  the  United  States,  shall  work  of  itself  a  renun- 
ciation of  his  naturalization,  and  that  such  an  intent  may  bo  held  to 
exist  where  the  residence  is  continuous  for  more  than  two  years. 

"  This  Department  would  uot  assume  to  decide  that  in  such  cases  as 
are  referred  to  in  your  dispatch  a  continuous  residence  in  a  foreign 
country  of  two  or  even  of  many  years  should  of  itself  work  an  expa- 
triation. Expatriation  is  a  fact  to  be  established,  like  any  other  fact, 
by  external  evidence,  and  such  continuous  residence,  even  for  a  life- 
time, is  capable  of  being  explained  on  other  theories  than  that  of  n, 
vohintary  denationalization.  But  when  the  fact  is  once  established, 
by  whatever  proof,  it  would,  in  the  opinion  of  this  Department,  oper- 
ate to  phice  the  expatriated  person  outside  the  number  of  those  who 
can  claim  the  protection  of  this  Government  as  a  right. 

'•  Tiie  duty  of  protection  as  toward  the  citizen,  or  the  riglit  of  its  ex- 
ercise as  toward  the  foreign  power,  is  not  always  correlative  with  the 
fact  of  citizenship.  Thus  it  was  demonstrated  by  my  predecessor,  Mr. 
Marcy,  that  an  extreme  case  may  arise  in  which  a  Government  will  be 
justified  in  taking  upon  itself  the  protection  of  persons  who  are  not 
citizens.  On  the  other  hand,  it  is  apparent  that  there  may  be  instances 
of  claims  to  citizenship  which  is  nominal  only,  if  it  have  any  existence, 
as  where  the  duties  of  citizenship  have  never  been  performed,  where 
the  person  of  the  individual  bas  never  been  within  the  national  juris- 
diction,  or  is  voluntarily  removed  from  it,  and  purposely  kept  beyond 
it ;  where  his  movable  wealth  is  purposely  placed  where  it  may  never 
contribute  to  the  national  necessities,  and  his  income  is  expended  for 
the  benefit  of  a  foreign  Government,  and  his  accumulations  go  to  swell 
its  taxable  wealth;  and  where  from  the  surrounding  circumstances  it 
must  be  assumed  that  he  has  abandoned  the  United  States  and  never 
intends  to  return  to  it. 

"It  cannot  be  contended  that  a  person  with  so  faint  an  exercise  of 
the  duties  of  citizenship  is  entitled  to  claim  the  protection  of  this  Gov- 
ernment as  a  right. 

"Each  case  as  it  arises  must  be  decided  on  its  merits.  In  each  the 
main  ftict  to  be  determined  will  be  this,  has  there  been  such  a  practical 
expatriation  as  removes  the  individual  from  the  jurisdiction  of  the 
United  States  ! 

"If  there  has  not  been  the  applicant  will  be  entitled  to  protection. 

"Continuous  absence  from  this  country  does  not  necessarily  presume 
expatriation.  It  has  always  been  held  to  be  consistent  with  a  purpose 
of  returning ;  and  in  the  case  of  a  natural-born  citizen,  or  of  a  natural- 
ized citizen,  so  residing  in  any  country,  except  the  country  of  his  na- 
tivity, this  Department  would  require  its  agents  to  extend  the  protec- 
tion of  the  Government  to  all  citizens,  except  in  the  presence  of  strong 
3GG 


[chap.  Vir,  ABANDONMENT    OF    CITIZENSHIP.  [§  176. 

affirmative  proof  of  a  purpose  of  expatriation.  Bat  when  a  uatural- 
ized  citizen  returns  to  bis  native  land  to  reside,  the  action  of  tlie  treaty- 
making  power  above  referred  to  would  seem  to  require  that  such  agents 
be  jealous  and  scrutinizing  when  he  seeks  their  intervention.  Even  in 
such  case  the  purpose  of  not  renouncing  the  adopted  citizenship  might 
be  manifested  and  proved  in  various  ways,  such  as  the  payment  of  an 
income  tax  when  such  a  tax  was  imi^osed,  the  maintenance  of  a  domi- 
cile, and  the  payment  of  taxes  on  personal  property  within  the  United 
States,  or  other  affirmative  action. 

"  It  is  the  duty  of  the  diplomatic  and  consular  agents  of  the  United 
States  to  listen  to  all  facts  which  may  be  produced  tending  to  exclude 
the  presumption  of  expatriation,  and  to  give  to  them  the  weight  to 
which  in  each  case  they  may  be  entitled. 

"  The  j)articular  cases  referred  to  in  your  dispatch  are  easily  deter- 
mined on  the  facts  as  you  state  them. 

''  Pepin,  the  son  of  a  naturalized  Frenchman  who  returned  to  France 
and  died  there,  was  never  in  this  country.  It  is  alleged  that  he  ob- 
tained an  American  passport  from  the  legation  in  London  some  two 
years  since ;  but  it  is  not  produced,  and  thus  leaves  him  without  any 
one  of  the  indicia  necessary  to  show  an  intent  on  his  part  to  assume 
the  duties  of  citizenship  as  well  as  the  privileges  granted  by  the  act  of 
1855. 

"  Excepting  the  alleged  application  for  the  passport  in  London,  it 
would  seem  quite  possible  that,  were  it  not  for  his  desire  to  avoid  the 
performance  of  duties  required  by  French  law,  he  would  perhaps  never 
have  dreamed  of  calling  himself  an  American,  that  he  would  remain  in 
France  and  avoid  all  duties  to  the  United  States,  that  he  would  call 
himself  a  citizen  of  the  United  States  and  avoid  all  duties  to  France. 

"  In  the  other  case,  an  American  whose  name  is  x^ithheld,  has  lived 
with  his  family  forty  years  in  France,  has  reared  his  children  there,  has 
never  proposed  to  return  to  the  United  States,  and  his  children  have 
never  been  to  the  United  States,  and  never  expect  to  go,  and  never  want 
to  go. 

"  In  each  of  these  cases  there  is  a  presumption  of  a  purpose  of  expa- 
triation so  strong  that,  until  it  can  be  rebutted  to  your  satisfaction,  you 
will  justified  in  concluding  that  the  persons  respectively  are  not  enti- 
tled to  your  intervention  to  protect  them  against  the  operation  of  the 
laws  of  the  country  which  they  have  selected  as  their  place  of  resi- 
dence." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Washburne,  .Jimo  !28,  1873.  MSS.  lust.,  France  ; 
For.  Eel.,  1873.  See  this  case  referred  to  by  Mr.  Frclingbnyseu  to  Mr, 
Lowell,  Feb.  27,  1884,  supra,  ^  171. 

"  I  am  of  opinion  that  the  entrance  into  the  civil  service  of  the  country 
of  his  nativity  l)y  a  naturalized  citizen  of  the  United  States,  who  has 
returned  to  tliat  country,  an<l  contiimcs  his  rcsidcncM!  there  beyond  the 

3G7 


§176.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

leugth  oftiuie  at  wbicb,  by  coiiventiou  betweeu  the  two  states,  the  in- 
tent not  to  return  to  the  country  of  adoption  may  be  held  to  exist,  must 
be  taken  to  be  very  strong  <  evidence  of  the  absence  of  intent  to  return,' 
and  must  raise  a  presumption,  which  might,  and  probably  would,  make 
it  very  difficult  for  the  country  of  adoption  to  assert  the  continued 
citizenship  of  the  party  thus  taking  service  and  continuing  to  reside  in 
the  countrj'  of  his  nativity." 

Mr.  Fish,  See.  of  State,  to  Mr.  Mullor,  Jau.  28, 1874.     MSS.  Dom.  Let. 

A  law  by  a  foreign  state  providing  that  all  persons  visiting  such 
state  are  to  be  regarded  as  citizens  or  subjects,  will  not  be  regarded  as 
internationally  binding. 

Mr.  Fieb,  Sec.  of  State,  to  Mr.Kuasell,  Feb.  22, 1875.     MSS.  Iubt.,ycncz.     See, 
to  same  effect,  9  Op.,  356;  Black,  1859;  supra,  $  172. 

A  naturalized  citizen  of  the  United  States  cannot  be  regarded  as 
renouncing  his  United  States  citizenship  merely  because  he  returns  to 
his  native  land.  To  sustain  such  renunciation,  there  must  be  either  an 
express  declaration  of  renunciation,  or  acts  from  which  it  may  be  logi- 
cally inferred. 

Mr.  Freliugbuy.sen,  Sec.  of  State,  to  Mr.  Osborne,  June  19, 1882.     MSS.  Inst.,  Arg. 
Eei),     Same  to  same,  July  18,  1883 ;  ibid. 

Abandonment  of  naturalization  in  the  United  States  may  be  inferred 
from  a  protracted  stay  iu  the  country  of  origin  after  returning  there, 
coupled  with  proof  of  animus  manendi,  and  of  entering  on  political  duties 
in  the  latter  country. 

Mr.  Frelingbuyseu,  Sec.  of  State,  to  Mr.  Taft,  Jan.  18, 1883.    MSS.  Inst.,  Austria. 

^Naturalization  may  be  lost  by  resumption  of  native  domicil. 

Mr.Frelingliuy8en,Sec.  of  State,  to  Mr.  Fish,  Apr.  23,1883.     MSS.  Inst.,  Bel- 
gium. 

"  By  the  French  code  all  Frenchmen  who  become  citizens  of  another 
country  by  the  laws  thereof,  thereby  lose  their  French  citizenship. 
This  Department,  however,  cannot  give  Mr.  Yawdoit  any  assurance  in 
advance  against  arrests  or  other  annoyances  to  which  he  might  possi- 
bly be  subjected  in  France  in  case  of  his  return  to  that  country,  nor  can 
it  advise  him  as  to  the  expediency  or  propriety  of  such  return.  This 
must  be  left  to  his  own  judgment.  Should  he,  however,  conclude  to 
return  to  France,  and  while  there  be  arrested  or  held  on  account  of 
previous  military  occupations,  this  Government  would  extend  to  him 
all  the  protection  which  as  an  American  citizen  he  may  be  found  under 
the  circumstances  entitled  to." 

Mr.  Frelingbuysen,  Sec.  of  State,  to  Mr.  Brents,  Jan.  2-1,  1864.     MSS.  Dom.  Let. 
See  supra,  $  172;  infra,  §$  190,215. 

Voluntary  expatriation  by  a  naturalized  citizen  which  forfeits  a  right 
to  diplomatic  intejTcntion  may  be  inferred  from  q»long  residence  abroad 

368 


CHAP.  VII.]  ABANDONMENT    OF    CITIZENSHIP.  [§  176. 

in  the  place  of  his  birth,  by  non-payment  of  taxes  and  non-possession 
of  property  in  this  country,  and  by  faihire  to  express  any  intention  to 
return. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Lowell,  Feb.  27,  1884.     MSS.  lust.,  Gr. 
Brit. 

"When  a  citizen  of  the  United  States  vohmtarily  phices  himself 
within  the  jurisdiction  of  a  foreign  Government,  and  subjects  himself 
and  his  pro^jerty  to  its  laws,  and  when  such  citizen  afterwards  seeks 
the  interference  of  the  United  States  to  redress  some  wrong  which  he 
may  have  suffered  at  the  hands  of  such  foreign  Government,  tiiis  Gov- 
ernment reserves  to  itself  the  right  of  determining  not  only  on  the 
merits  of  the  particular  claim,  but  also  on  the  claimant's  right  to  its 
protection.  It  is  for  this  Government  to  say  whether  the  claim  shall  be 
presented  or  not  to  the  foreign  Government." 

Mr.  FreliughuyseD,  Sec.  of  State,  to  Mr.  Lowell,  Feb.  27,  1884.     MSS.  Inst.,  Gr. 

Brit.;  For.  Eel.,  1884. 
For  fuller  extracts  from  opinion  in  this  case,  see  svpra,  ^171. 

"Mr.  Bagur  resided  in  the  United  States  from  1852  to  18G5,  and  in 
1860  appears  to  have  been  naturalized  here ;  but,  in  view  of  what  fol- 
lows, no  opinion  is  necessary  as  to  the  regularity  of  this  procedure.  In 
18G5  he  returned  to  Spain.  Thither  he  carried  his  wife,  recently  married. 
There  his  children  were  born,  and  there  he  has  since  remained — over 
twenty  years.  The  fact  that  he  has  never  voted  or  held  office  in  Spain 
or  taken  part  in  any  political  demonstration  there,  may  show  that  he 
was  not  a  zealous  Spaniard,  but  does  not  prove  him  to  have  been  a  loyal 
citizen  of  the  United  States. 

"  While  there  is  no  allegation  that  he  intended  to  return  to  the  United 
States,  the  inference  to  the  contrary  is  rendered  very  strong  by  his 
settlement  in  Spain  as  the  place  of  his  children's  birth  and  education, 
and  by  his  failure  even  now  to  make  any  effort  to  return.  Moreover, 
there  is  no  evidence  that  he  ever  contributed  by  payment  of  taxes  or 
otherwise  to  the  support  of  this  Government.  The  facts  furnish  a 
presumiJtion  not  rebutted  that  he  has  abandoned  his  nationality,  in- 
volving his  minor  children  in  the  same  abandonment.  Under  these 
circumstances,  thus  understood,  the  legation  will  not  accede  to  the 
request  of  Mr.  Bagur  for  a  United  States  passport." 

Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Curry,  Jan.  4,  1886.     MSS.  Inst.,  Spain. 

The  presumption  of  abandonment  of  acquired  allegiance  in  the  United 
States  by  a  native  Turk  returning  to  Turkey  and  there  renunning  two 
years  is  open  to  rebuttal  by  proof  of  an  intention  to  return  to  the  United 
States. 

Mr.  Bayard,  Sec.   of  State,  to  Mr.  Cox,  Mar.  4,  1880.     MSS.  Inst.,  Turkey;  see 
supra,  ^$  172^. 

"Were  we  to  hold  that  citizens  of  the  United  States  cannot,  without 
forfeiting  their  nationality,  reside  from  time  to  time  in  South  American 
S.  Mis.  102— VOL.  II 24  309 


§176.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

States  as  agents  of  their  countrymen,  the  business  of  both  continents 
woukl  receive  a  heavy  bUiw.  In  affairs  so  vast,  so  intricate,  and  so  con- 
tinuous as  those  of  Alsop  &  Co ,  for  instance,  there  can  be  neither 
consistency  nor  responsibility  of  action  excei)t  through  trusted  agents, 
who,  while  taking  up  continuous  abode  in  their  places  of  business  action 
in  South  America,  would  from  early  i)ersonal  relations  be  in  the  confi- 
dence of  their  chiefs,  making  their  central  business  in  this  country  the 
place  to  which  their  domiciliary  duties  would  relate,  and  contiiuiing  to 
subject  themselves  to  the  laws  of  the  country  in  which  the  lirm  is 
domiciled.  As  a  matter  of  i)ublic  policy,  therelore,  as  well  as  of  inlci- 
national  law,  I  cannot  but  conclude  that  Mv.  Wheelwright's  domicile  and 
uatiouality  are  in  the  United  States." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Roberts,  Mar.  20,  1886.     MSS.  Inst.,  Cbili. 

"It  appears  from  your  dispatch  that  Mr.  Crauz  was  born  at  Ham- 
burg, Germany,  about  the  19th  day  of  April,  IStJO;  that  he  emigrated 
to  America  on  the  18th  day  of  September,  1877 ;  that  he  was  naturalized 
at  Boston  in  1882;  that  he  left  the  United  States  the  last  time  on  the 
22d  day  of  December,  1883;  that  he  is  now  residing  temi)orarily  at 
Brussels ;  that  his  father  resides  in  Austria,  of  which  county  he,  the 
father,  is  a  subject,  and  that  he  and  his  father  are  engaged  in  trade  in 
Europe.  You  state,  moreover,  that  in  the  application  signed  and  sworn 
to  by  Mr.  Cranz  for  a  passport  he  declares  that  he  ^has  no  intention  to 
return  to  the  United  States  to  reside,  though  it  is  possible  he  may  some 
time  make  a  visit  there,  and  that  he  desires  the  passport  for  the  ])urpose 
of  residing  in  Europe.' 

"Section  4075  of  the  Revised  Statutes  provides  that  the  Secretary  of 
State  may  grant  and  issue  i)asspor1s,  and  may  cause  them  to  be  issued 
by  such  diplomatic  and  consular  f  fificers  as  the  President  shall  desig- 
nate. 

"Under  the  statute  it  is  always  a  matter  of  discretion  in  each  indi- 
vidual case  as  to  whether  or  not  a  passport  shall  be  issued.  As  it  ai>- 
pears  that  Mr.  Cranz  resided  in  the  United  States  barely  long  enough 
tq  be  naturalized,  and  as  it  appears  that  he  has  no  intention  to  return 
to  this  countr}'  to  reside,  or  to  take  upon  himself  here  the  duties  and 
obligations  of  American  citizenship,  the  Department  fully  approves  of 
your  course  in  declining  to  issue  him  a  passport." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Tree,  Apr.  9,  1886.     MSS.  Inst.,  Belgium. 
See  infra,  U  190,  215. 

"  Your  dispatch  Ko.  193,  of  the  1st  instant,  in  reference  to  the  ap- 
plication of  Albert  Landau  for  a  passport,  has  been  received. 

"  In  the  attached  memorial  Mr.  Landau  alleges  that  he  was  duly  nat- 
uralized in  Philadelphia  during  the  year  1854,  and  that  subsequently 
in  the  same  year,  having  obtained  a  passport  from  this  Department,  he 
returned  to  Europe.  During  the  following  year,  it  is  alleged,  he  lost 
both  his  record  of  naturalization  and  his  passport,  but  obtained  another 
370 


CHAP.  VII.]  ABANDONMENT    OF    CITIZENSHIP.  [§  176. 

passport  fiom  the  legation  at  Coustantinople.  This  was  subsequently 
canceled,  when  a  new  passport  was  given  him  by  the  consul-general  at 
Alexanilria,  Egypt,  in  18G3.  The  latter  passport  he  is  unable  to  pro- 
duce. He  has  not,  apparently  visited  the  United  States  since  1854. 
He  now  desires  a  new  passport  to  be  issued  to  liim  by  your  legation. 

"  It  is  not  necessary  to  consider  whether  naturalization  can  be  proved 
by  parol,  in  case  of  destruction  of  the  record,  for  in  this  case  there  is  no 
adequate  proof  that  the  record  of  naturalization  ever  existed.  But 
even  supposing  that  Mr.  Landau's  naturalization  were  duly  proved,  I 
hold  that  he  is  not  now  entitled  to  a  passport.  He  was  naturalized, 
so  he  claims,  in  1854,  at  Philadelphia.  He  was  in  Levant  in  1857,  and 
there  amassed  a  fortune,  with  which,  about  18G8,  he  retired  to  Vienna. 
During  the  whole  of  this  period,  according  to  his  own  statement,  he 
was  absent  from  the  United  States.  This  absence,  therefore,  commenc- 
ing almost  at  the  instant  of  his  naturalization,  continued  over  thirty- 
four  years,  during  which  time  he  performed  none  of  the  duties,  nor  made 
any  of  the  contributions,  of  a  citizen  to  the  support  or  welfare  of  the 
country  of  his  adoption,  although  during  a  portion  of  that  time  all  the 
resources  of  that  country  were  severely  drawn  upon.  Had  he  paid  an 
income  tax,  as  by  law  he  should  have  done,  if  he  retained  his  citizen- 
ship during  the  period  when  that  tax  was  imposed,  it  would  be  easy  for 
him  to  establish  such  payment.  No  attempt  has  been  made  to  do  so, 
and  we  must  therefore  presume  that  no  such  tax  was  paid.  Had  he 
paid  taxes  to  the  State  of  Pennsylvania,  in  which,  it  is  to  be  inferred 
from  his  statements,  he  claims  to  have  been  domiciled,  this,  also,  could 
be  easily  i)roved ;  and  that  no  such  proof  is  offered  justifies  the  pre- 
sumption that  none  of  such  taxes  were  paid.  He  keeps,  exempt  from 
all  taxation  in  this  country,  the  wealth  he  has  accumulated  under  the 
protection  of  a  passport  and  alleged  citizenship  of  this  Government; 
and  he  thus  stands  aloof,  demanding  the  protection  of  allegiance  while 
abandoning  all  its  duties,  and  from  across  the  ocean,  in  a  foreign  land, 
applies  to  this  Government  for  a  pass])ort  which,  without  his  perform- 
ing any  of  the  duties  of  a  citizen  of  the  United  States,  would  relieve 
him,  so  far  as  the  interposition  of  the  United  States  could  do  so,  from 
the  duties  of  a  subject  of  Austria.  This  is  not  a  case  in  which  the 
United  States  can  or  ought  to  interpose.  If  Mr.  Landau  had  ever  any 
title  to  be  considered  a  citizen  of  tlje  United  States,  ho  has  abandoned 
it.  Citizenship  of  the  United  States,  it  is  my  duty  to  say,  is  a  high 
privilege,  and,  when  granted  to  an  alien,  confers  great  prerogatives, 
whose  maintenance,  when  they  are  honestly  procured  and  faithfully  ex- 
ercised, the  United  States  will  exert  its  fullest  jtowers  to  vindicate. 
These  prerogatives  are  granted  to  protect  not  merely  men  of  wealth, 
such  as  the  jiresent  mcnioiialist,  but  the  humblest  and  most  friendless 
immigrant  who  sei'ks  shelter  and  a  home  on  these  shores.  IJiit  th<^  eu- 
jo^'ment  of  the  prerogatives  is  conditioned  on  the  ])erformance  of  the 
correlativ*'  duties  of  loyal  servi(;e,  of  love  to  tJK;  country  of  adoption,  ot 

31i 


§  17G.]     CITIZEXSillP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  yil. 

support  of  the  country  when  she  needs  support,  and  the  payment  of  the 
just  taxes  that  country  imposes  upon  all  its  citizens.  When  the  per- 
formance of  that  duty  ceases,  then  cease  the  prerogatives  of  the  citizen- 
ship on  which  they  are  conditioned.  As  far  as  1  can  judge  from  what  is 
before  me  in  the  present  case,  these  duties  of  citizenship  have  been  stead- 
ilj'  evaded  by  non-residence,  and  have  never  been  ])erf()rnK'd  by  the  me- 
morialist. Whatever  may  have  once  been  his  title  to  citizenship,  it  was 
long  since  abandoned  by  him.  His  application  for  a  passport  should 
therefore  be  refused." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Lee,  July  24,  1886.     MSS.  Inst.,  Austria.     See 

infra,  ^  190. 
As  to  forfeiture  of  eitizensliip  by  desertion  of  the  njilitary  or  naval  service  of 

the  United  States,  by  avoiding  draft,  itc,  sec  Rev.  Stat.,  $$  1996-191)8.     For 

ottier  cases,  see  App.,  vol.  iii,  ^  176. 

Domicil  in  a  country  of  voluntary  asylum  may  suspend  allegiance  to 
the  country'  of  birth. 

Caignet  v.  Pottit,  2  Dall.,  234 ;  S.  C,  1  Yeates,  .516. 

To  effect  expatriation  there  must  be  not  only  a  renunciation  of  citi- 
zenship of  the  United  States,  but  actual  removal  for  some  lawful  pur- 
pose, and  the  acquisition  of  a  domicil  elsewhere. 
Talbot  V.  Janson,  3  Dall.,  133. 

Merely  entering  into  the  military  or  naval  service  of  a  foreign  sov- 
ereign does  not  by  itself  work  expatriation. 

Santissima  Trinidnd,  1  Brock,  478  ff.  ;  7  Wheat.,  283.     See  infra,  §  392. 

Alienage  of  a  defendant  is  not  to  be  presumed  from  the  mere  fact 
that  he  is  the  consul  in  this  country  of  a  foreign  Government. 

Bcirs  t).  Preston,  111  U.  S.,  252. 

There  is  no  mode  of  renunciation  by  a  citizen  of  his  citizenship  pre- 
scribed. But  if  he  emigrates,  carries  his  family  and  effects  along  with 
him,  manifests  a  plain  intention  not  to  return,  takes  up  his  permanent 
residence  abroad,  and  assumes  the  obligation  of  a  subject  to  a  foreign 
Government,  this  would  imply  a  dissolution  of  his  previous  relations 
with  the  United  States. 

9  Op.,  62,  Black,  1857. 

A  naturalized  Bavarian  may  return,  so  far  as  the  laws  of  the  United 
States  are  concerned,  to  his  former  allegiance;  and  the  Bavarian  Gov- 
ernment may  prescribe  the  manner  of  Lis  doing  so. 
Ibid. 

Naturalization  is  the  highest,  but  not  the  only,  evidence  of  expatria- 
tion. Such  acts,  in  addition  to  the  selection  and  enjoyment  of  a  foreign 
domicile,  as  amount  to  a  renunciation  of  United  States  citizenshii)  and 
a  willingness  to  submit  to  or  adopt  the  obligations  of  a  citizen  of  the 
country  of  domicile,  such  as  accepting  public  emx)loyment,  engaging  in 
372 


CHAP.  VII.]  ABANDONMENT    OT   CITIZENSHIP.  [§177. 

military  services,  &c.,  may  be  treated  by  this  Government  as  effecting 
expatriation. 

14  Op.,  2f>5,  Williams,  1873. 

Intent  to  remain  in  a  foreign  country  may  be  evidenced  in  various 
ways  and  by  a  great  variety  of  circumstances,  and  it  is  impossible  to 
laj'  down  any  general  rule  by  which  all  cases  can  be  decided.  Intent 
is  the  great  criterion  by  which  the  character  of  domicil  is  determined. 

Ibid. 

As  to  an  alien's  losing  rights  in  an  enemy's  country,  see  infra,  ^  352. 

As  to  return  of  naturalized  citizen  to  his  native  laud,  see  Lawrence,  com.  droit 

int.,  ii,  249. 
As  to  forfeiture,  by  abandoument  of  country,  of  right  to  call  for  protection,  see 

infra,  §$  190,  215. 

(2)  Or  by  natukalizAtion  ix  another  couktry. 

§  177. 

A  citizen  of  the  United  States  who  becomes  naturalized  in  another 
country  loses  his  United  States  citizenship,  and  can  only  regain  it  by 
being  duly  naturalized  as  a  citizen  of  the  United  States. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Carpenter,  Feb.  5,  1873.     MSS.  Dom.  Let.    Mr. 
Fish,  Sec.  of  State,  to  Mr.  Whiting,  Feb.  6,  1873;  Hid. 

"Your  dispatch  of  the  5th  ultimo  relative  to  the  case  of  Mr.  Peter 
Cushmau  Jones,  an  American  citizen  resident  in  Honolulu,  has  been 
received. 

"  Mr.  Jones,  as  it  appears  from  his  letter  to  you  of  the  26th  of  May,  a 
copy  of  which  you  inclose,  was  born  in  Boston,  Mass.,  in  1837,  and  in 
1857  took  up  his  residence  in  the  Hawaiian  Kingdom,  entering  into 
mercau^le  pursuits  there  as  a  domiciled  American  citizen.  Becoming 
the  owner  of  a  merchant  vessel  there  under  the  Hawaiian  flag,  it  became 
necessary  for  him,  in  order  to  the  maintenance  of  his  rights  in  that  King- 
dom, to  take  an  oath  of  allegiance  to  the  sovereign  of  the  islands.  The 
form  of  the  oath  is  set  out  in  ~SIt.  Jones's  letter  thus  : 

"'Tbe  undersigned,  a  native  of  the  United  States  of  America,  being 
duly  sworn,  upon  his  oath  declares  that  he  will  support  the  constitution 
and  laws  of  the  Hawaiian  Islands,  and  bear  true  allegiance  to  His  Maj- 
esty Kamehameha  IV.' 

"Your  inquiry  is  as  to  what  ett'ect  this  jiroceediug  may  have  upon 
the  status  of  Mr.  Jones's  American  citizenship. 

"In  becoming  a  citizen  of  the  United  States  the  law  requires  that  an 
alien  shall  not  only  swear  to  support  the  Constitution  and  laws  of  tbis 
country,  but  also  to  renounce  all  other  allegiance,  and  especially  that  of 
the  country  of  which  he  may  be  then  a  subject  or  citizen.  In  the  oatli 
taken  by  Mr.  Jones  there  is  no  such  express  renunciation  of  his  Ameri- 
can citizen.ship,  nor  do  the  circumstances  manifest  any  intention  on  iiis 
part  to  expatriate  himself. 

373 


§  178.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

"  It  may,  however,  at  some  future  time,  become  a  question  for  judicial 
investigation  in  bis  case. 

"  The  doetriue  of  tlie  executive  branch  of  the  Government  on  this 
subject  is  tlius  expressed  by  the  xVttorney-General : 

"  '  To  constitute  expatriation  there  must  be  an  actual  removal,  fol- 
lowed by  foreign  residence,  accompanied  b^'  authentic  renunciation  of 
preexisting  citizenship'  (8  Op.,  130),  and  this  view  tinds  supi)ort  in 
some  judicial  decisions  ( Juando  v.  Taylor,  2  Paine,  G52). 

"  In  the  absence  of  a  direct  judicial  determination  of  the  (juestion,  I 
do  not  feel  disposed  to  deny  to  Mr.  Jones  any  right  or  i)rivilege  pertain- 
ing to  his  character  of  American  citizenship,  and  therefore,  while  the 
Department  will  not  undertake  to  express  an  authoritative  o])inion  on 
the  etiect  which  his  course  in  Hawaii  may  ultimately  have  on  his  status 
in  that  regard,  you  are  authorized  tq  extend  to  him  such  protection  as 
may  be  properly  due  to  a  citizen  of  the  United  States  residing  in  and 
having  acquired  a  commercial  domicile  in  a  foreign  state.  This  protec- 
tion must,  of  course,  be  limited  and  qualified  by  the  liabilities  and  ob- 
ligations incident  to  such  commercial  domicile." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Comly,  July  1,  1862.     MSS.  lust.,  Ha- 
waii; For.  Rel.,  1882. 

Citizens  of  the  United  States  cannot  divest  themselves  of  allegiance 
to  the  Government  hy  residence  among  Indian  tribes,  nor  even  by  be- 
coming members  thereof. 
2  Op.,  693  Butler,  18:54. 

A  native-born  citizen  of  the  United  States,  who  has  been  naturalized 
in  a  foreign  country,  and  has  thus  become  a  citizen  thereof,  is  to  be  re- 
garded as  an  alien  ;  and,  in  order  to  reacquire  his  original  nationality, 
he  must  conform  to  the  laws  of  the  United  States  providing  for  the  ad- 
mission of  aliens  to  citizenship. 
14  Op.,  295,  Williams,  1873. 

A  native  of  the  United  States,  naturalized  as  a  citizen  of  ^Mexico,  did 
not  forfeit  his  right,  under  a  grant  from  Mexico,  to  lands  in  California, 
by  afterwards  joining  the  forces  of  the  United  States  in  the  war  by 
which  that  territory  was  acquired. 
U.  S.  r.  ReadiDg,  18  How.,  1. 

(3)  Effect  of  treaty  limitations. 

§178. 

Qualifications  imposed  by  treaty  become,  when  such  treaty  is  duly 
solemnized  and  ratified,  part  of  our  naturalization  system. 

Supra,  $  138. 

"  It,  is  much  to  be  desired  that  there  should  be  a  revision  of  the  treaties 
affecting  the  status  of  naturalized  Germans  (other  than  Austrians)  in 
374 


CHAP.  VIL]  GERMAN    TEEATY.  [§  178. 

the  Uuited  States.     They  were  all  negotiated  by  yon,  and  yon  are  there- 
fore doubtless  familiar  with  their  practical  defects. 

"  When  they  were  negotiated  several  independent  nations  existed  in 
the  territory  which  now  constitutes  the  German  Empire.  When  the 
Empire  was  formed  we  had  entered  into  treaties  for  the  regulation  of 
naturalization  with  the  oSTorth  German  Union,  with  the  Grand  Duchy  of 
Baden,  with  the  Kingdom  of  Bavaria,  with  the  Grand  Duchy  of  Hesse 
as  to  the  citizens  of  the  parts  of  the  Grand  Duchy  not  included  in  the 
Xorth  German  Confederation,  and  with  the  Kingdom  of  Wiirtemberg. 

"The  first  defect  in  the  existing  treaties  is  that  they  are  not  coex- 
tensive with  the  limits  of  the  Empire.  The  provisions  of  none  of  the 
existing  treaties  extend  to  Alsace  and  Lorraine,  which  form  an  integral 
part  of  the  Empire,  and  from  which  there  has  long  been  a  large  and 
valnable  emigration  to  the  United  States,  whose  status  deserves  recog- 
nition and  protection. 

"The  next  defect  in  the  existing  treaties  is  that  they  make  different 
and,  in  some  respects,  conflicting  j)rovisions  respecting  the  naturalized 
citizens.    I  will  iioint  out  these  inconsistencies. 

"For  the  sake  of  convenience  and  brevity  I  confine  myself  to  provis- 
ions resj)ecting  the  acquisition  of  American  citizenship  by  Germans,  it 
being  understood  that  the  provisions  of  the  treaties  are  mutual  unless 
otherwise  stated. 

"  1.  Citizens  of  the  Xorth  German  Confederation  icho  become  natural- 
ized citizens  of  the  United  States,  and  shall  have  resided  uninterruptedly 
within  the  United  States  five  years,  shall  be  held  by  the  North  German 
Confederation  American  citizens,  and  shall  be  treated  as  such  ;  but  citi- 
zens of  Baden,  or  of  Wiirtemberg,  or  of  Bavaria,  or  of  Hesse,  who  have 
become  or  shall  become  such  naturalized  citizens,  and  have  so  resided, 
are  to  be  held  to  be  such  citizens  (neither  German  country,  however, 
undertaking  to  hold  them  to  be  such  citizens  beyond  its  own  borders). 
A  protocol,  signed  at  the  same  time  with  the  Bavarian  treat}',  makes  a 
still  wider  divergence  in  the  case  of  that  treaty.  With  this  power  we 
have  agreed  that  the  words  'resided  uninterruptedly  '  do  not  mean  '  a 
continued  bodily  presence,'  and  therefore  '  a  transient  absence  by  no 
means  interrupts  the  period  of  five  years  ;  and  also  that  under  certain 
circumstances  a  five  years'  residence  shall  no  longer  be  required.' 

"Thus  on  this  most  vital  point  of  a  naturalization  treaty  we  find: 

"  (a)  That  there  are  two  provinces  unaffected  by  any  treaty. 

"  (h)  That  the  remaining  states  are  attected  by  four  treaties,  each 
operative  only  within  its  own  territorial  sphere. 

"  (c)  That  of  these  four  treaties,  three  expressly  relate  to  past  acts  of 
naturalization  as  well  as  to  future  ones,  while  the  fourth  and  most  im- 
portant one  is  entirely  sih^nt  as  to  past  acts. 

"  (d)  And  as  to  one  treaty,  we  are  bound  to  a  construction  of  the  word 
'  iiMinterruptodly,'  whi{;li  we  have  not  a  right  to  insist  upon  ns  to  the 
otlicr  three  treaties. 

375 


§  178.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [OHA?.  VIL 

''2.  Climes  coiiuinttcil  bel'oieeiiiij^iation  may  bepunislied, in  wliat  was 
North  Germany,  on  the  return  of  the  emij;raut,  saving'  always  the  limi- 
tation established  by  the  laws  of  his  original  country.  The  other  treaties 
add  to  this  saving  clause  the  words  'or  any  other  remission  of  liability 
to  i)uuishmeut.'  Bavaria  adds  to  tins  that  the  returned  emigrant  is  not 
to  be  made  punishable  for  the  act  of  emigration  itself,  and  liadeu 
makes  special  provisions  concerning  liiiil  and  j)uuishmeut  for  non-ful- 
lillment  of  military  duty. 

"3.  If  a  German  naturalized  in  America  renews  his  residence  in  North 
Germany  without  intent  to  return  to  America,  he  shall  be  held  to  have 
renounced  his  naturalization  in  the  United  States.  Tiie  intent  not  to 
return  may  be  held  to  exist  when  the  person  naturalized  in  the  one 
country  resides  more  than  two  years  in  the  other  country.  The  same 
])ro\isi()n  applies  to  Wiirtemberg  as  to  a  'Wiirtemberger,' to  Hesse 
Darmstadt  as  to  a  'Hessian  naturalized  in  America  but  originally  a 
citizen  of  the  part  of  the  Grand  Duchy  not  included  in  the  North  Ger- 
man Confederation  ; '  to  Bavaria  as  to  a  '  Bavarian,'  but  as  to  the  latter 
I)Ower  it  is  declared  that  the  article  'shall  only  have  this  meaning,  that 
the  adopted  country  of  the  emigrant  cannot  prevent  him  from  accjuiring 
once  more  his  former  citizenship';  but  not  that  the  state  to  whi(;h  the 
emigrant  originally  belonged  is  bound  to  rCiStorehim  at  once  to  his  orig- 
inal relation.  As  to  Baden,  it  is  only  provided  that  the  emigrant  from 
the  one  state  who  is  to  be  held  as  a  citizen  of  the  other  state,  shall  not 
on  his  return  to  his  original  country  be  constrained  to  resume  his 
former  citizenship;  yet,  if  he  shall,  of  his  own  accord,  reacquire  it  and 
renounce  the  citizenship  obtained  by  naturalization,  such  a  renuncia- 
tion is  allowed,  and  no  fixed  period  of  residence  shall  be  required  for 
the  recognition  of  his  recoverj'  of  citizenship  in  his  original  country. 

"  Here,  again,  we  find  great  defects,  which  it  is  very  desirable  to 
have  remedied. 

"  (rt)  The  provisions  respecting  residence  in  the  old  country  and  the 
reacquisition  of  citizenship  are  unequal,  and  in  the  case  of  Bavaria 
uncertain. 

''  (b)  Kesidence  in  other  parts  of  Germany  than  that  covered  by  the 
provisions  of  the  particular  treaty  is  inoperative  to  work  a  loss  of  the 
acquired  citizenship,  which  is  against  the  interests  and  the  real  inten- 
tion of  the  United  States  and  of  Germany. 

"4.  Each  of  these  treaties  contains  a  provision  respecting  existing 
extradition  treaties.  The  treaties  thus  referred  to  appear  to  be  iden- 
tical in  principle,  except  that  the  treaty  with  Baden  contains  no  pro- 
vision respecting  the  utterance  of  forged  paper,  while  such  a  ])rovision 
is  found  in  all  the  other  treaties.  The  extradition  treaties  with  France, 
concluded  in  1843  and  1845,  which  may  be  contended  to  be  in  force  as 
to  the  portions  of  Alsace  and  Lorraine  which  were  ceded  to  Germany, 
contain  a  difierent  enumeration  of  crimes,  and  include  rape  and  burg- 

37G 


CHAP.  VII  ]  GERMAN   TREATY.  [§  178. 

lary  as  among  the  offenses  for  winch  an  extradition  may  be  claimed  by 
one  Government  of  the  other. 

"5.  None  of  the  treaties  make  a  provision  protecting  the  rights  of 
inheritance  of  the  emigrant,  in  cases  like  Klatt's,  where  the  citizenship 
of  one  country  is  lost  and  that  of  the  other  is  not  yet  acquired. 

"  I  have  already  expressed  the  opinion,  io  my  No.  560,  that  it  is  de- 
sirable to  revise  these  several  treaties,  and  to  reduce  the  respective 
rights  and  obligations  under  them  to  the  simplicity  and  defiuiteness  of 
a  single,  or  rather  of  two,  instruments. 

"  The  extension  of  the  provisions  of  the  naturalization  treaty  with 
North  Germany  would,  in  the  opinion  of  the  President,  be  the  simplest 
and  best  way  to  solve  that  question,  adding  to  it  such  a  provision  as 
might  be  necessary,  under  German  laws,  to  enable  Germans  who  have 
declared  their  intention  to  become  citizens  of  the  United  States,  but 
have  not  yet  become  such,  to  inherit  real  and  personal  estate  in  Ger- 
many, and  also  agreeing  that  its  provisions  are  to  extend  to  all  past 
naturalization." 

Mr,  Fish,  Sec.  of  State,  to  Mr.  Bancroft,  Apr.  14,  1873.     MSS.  Inst.,  Germ;  For. 
Eel.,  1873.     See  swjjra,  ^  172^. 

''  It  is  much  to  be  regretted  that  the  present  Government  at  Berlin  is 
not  disposed  to  listen  favorably  to  the  suggestion  which  you  were  au- 
thorized to  make  that  the  naturalization  treaty  with  the  North  German 
Union  should  be  extended  over  the  Empire. 

"The  circumstances  under  which  the  existing  treaties  were  negotiated 
necessarily  made  them  what  they  are.  To  have  gained  at  that  time 
the  recognition  of  the  principle  of  the  right  of  emigration  was  a  triumph 
of  which  every  one  connected  with  it  has  good  right  to  be  proud.  But 
the  fact  that  the  negotiations  were  made  with  different  and  independent 
Governments,  each  with  its  own  peculiar  views,  has  been  the  cause  of 
the  divergencies  referred  to  in  my  No.  569.  Notwithstanding  what  you 
say  in  your  No.  480,  I  still  think  it  would  be  better  to  remove  these  dif- 
ferences, and  to  have  but  one  rule  for  all  Germany.  And  I  had  thought 
that,  as  your  name  is  identified  with  the  recognition  of  the  great  prin- 
ciple upon  which  the  treaties  were  founded,  it  was  due  to  you  that  the 
complete  structure  which  must  inevitably  come  should  bear  your  signa- 
ture. I  regret  to  learn  from  you  that  there  is  no  present  probability  of 
such  a  result. 

"  A  German  can  now  come  to  America,  obtain  his  naturalization 
papers  through  the  operation  of  our  laws,  return  to  Germany  and  reside 
there  indefinitely  as  an  American  citizen,  provided  he  does  not  reside 
the  requisite  time  for  renunciation  in  the  territories  under  the  jurisdic- 
tion of  the  particular  power  of  whom  he  was  formerly  a  subject.  It  is 
true  Hint  such  a  cours«;  would  be  a  fraud  upon  the  United  States  and 
a  fraud  u])<m  tlie  German  Empire.  We  should  be,  deprived  of  the  re- 
sources of  the  naluralized  citizen   towards  tlie  supixntol"  the  state; 

377 


^^  179.]  ciTizENsnir,  naturalization,  and  alienage,  [chap.  VtL 

Geniiaiiy  would  be  (k'piiM'd  of  llic  liylit  to  call  upon  liiiu  lor  lior  de- 
fense. It  is  lor  the  interest  of  neither  to  jjerpetuate  tliis.  We  are  ready 
OD  our  side  to  remedy  it  by  extending  the  provisions  of  the  treaty 
with  North  Germany  over  the  Empire,  as  I  have  already  said  ;  but  if  our 
l)roposition  will  not  be  listened  to,  we  must  await  the  return  of  a  bettrr 
reason.'' 

Mr.  Fish, Sec.  of  state,  to  Mr.  Baiuruft,  June  4,187:?.     For.  Rel.,  IhT:?.     Uy  Mr. 

Bayard  in  iustniction.s  to  Mr.  Poudleton   of  June 'Jh,  1887,  t lie  apiilication 

of  the  treaty  to  Alsace-Lorraine  is  affiriued. 

A  citizen  of  the  is^orth  German  Confederation,  though  he  has  become 

a  naturalized  eitizen  of  the  United  States,  must  have  resided  uninter- 
rui)tedly  in  the  latter  country  for  live  years  befoie  his  acquin-d  citizen- 
ship will  be  recognized  by  the  former,  under  the  treaty  of  iM'hruary  2-, 
18G8. 

13  Op.,  37(3,  Akerman,  1871. 

The  recitial  in  the  record  of  his  naturalization  that  he  had  resided 
continuously  in  the  United  States  for  more  tlian  five  years  would  not 
be  conclusive  as  to  the  fact  so  recited. 

Ihid.     See  other  cases  supra,  ^  173. 

(4)    UXDER   TREATY   WITH    GERMANY,    TWO     YEARS'    RKSIDEXCE    IX    GeR.MANY   IMUMA 
FACIE   PROOF   OF   ARANDON.MENT. 

§179. 

<' Your  No.  180  is  received.  It  incloses  an  announcement  that  here- 
after naturalized  Germans  who  have  resided  in  Germany  more  than 
two  years  shall  not  be  forced  into  the  army  immediately  u[)on  the  expi- 
ration of  that  time,  but  shall  first  be  oflered  an  opportunity  to  return 
to  the  United  States. 

"The  announcement  is  carefully  worded  and  seems  intended  to  re- 
move the  difficulty  which  has  existed.  If  the  course  indicated  be  fairly 
pursued  and  naturalized  citizens  resident  in  Gernumy  are  notilied  of 
the  intentions  of  the  authorities  and  are  allowed  to  depart  piior  to  any 
attempt  to  force  them  into  service,  it  yv\U,  as  is  hoped,  remove  an  ob- 
jectionable feature  in  the  working  of  the  treaty,  and  not  compel  you  to 
discuss  ca.ses  where  an  adverse  decision  has  practically  been  already 
pronounced  by  the  authorities." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  Nov.  5,  1875.    MSS.  Inst.,  Germ.    See  supra, 
$  149. 

"A  naturalized  citizen  may  forfeit  his  naturalization  before  the  two 
years  mentioned  in  the  treaty  have  elapsed.  To  reach  this  conclusion, 
however,  in  such  a  case,  would  require  clearer  proof  than  is  generally 
to  be  derived  from  silence  or  from  want  of  a  general  statement  of  in- 
tention to  return.  ITowever  this  may  be,  it  would  appear  that  any 
person  ai)plying  lor  a  passport  may  lairly  be  required  to  comply  with 
378 


CHAP,  til]  GERMAN    TREATY.  [§  179. 

such  proper  regulations  as  have  been  adopted  by  tbe  legation,  and  to 
make  such  preliminary  statements  as  are  demanded  in  all  cases." 

Same  to  same,  Nov.  1,  1S7G;  ibid.  See,  as  to  negotiation  of  this  treaty,  supra, 
§  149. 

"  While  the  intent  to  remain  in  the  country  of  birth  maij  be  held  to 
exist  after  two  years'  continuous  residence,  it  is  in  reality  not  so  held 
without  special  circumstances  showing  either  an  intent  to  remain  per- 
manently, or  the  absence  of  all  intent  to  return  to  the  United  States." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Williams,  of  House  Committee  on  Foreign  Re- 
lations.    MSS.  Report  Book. 

Two  years'  residence  in  such  cases  is  merelj  prima  facie  proof  of  aban- 
donment of  nationality. 

Mr.  Fish  to  Mr.  Davis,  July  20,  1875.  MSS.  Inst.,  Germ.  Same  to  same,  Nov. 
5,  1875;  ibid.  Same  to  same,  June  26,  1876 ;  ibid.  Same  to  same,  July  13, 
1876;  ibid.  Mr.  Evarts  to  Mr.  White,  June  6,  1879;  ibid.  Mr.  Freling- 
huysen  to  Mr.  Kasson,  Feb.  7,  1885;  ibid. 

"  In  the  treaty  between  tbe  United  States  and  the  North  German 
Confederation  tbe  fourth  article  provides  as  follows : 

"'If  a  German  naturalized  in  America  renews  his  residence  in  Xorth 
Germany,  without  the  intent  to  return  to  America,  he  shall  be  held  to 
have  renounced  his  naturalization  in  the  United  States.  Eeciprocally, 
if  an  American  naturalized  in  Korth  Germany  renews  his  residence  in 
the  United  States  without  tbe  intent  to  return  to  North  Germany  he 
shall  be  held  to  bave  renounced  his  naturalization  in  North  Germany. 
The  intent  not  to  return  may  he  held  to  exist  when  the  person  naturalized 
in  the  one  country  resides  more  than  two  years  in  the  other  country.'' 

"An  important  question  has  been  referred  to  me  wbich  involves  tbe 
lines  underscored  in  tbe  above  article.  Tbe  question  is  this :  Is  the 
residing  for  more  than  two  years  by  a  person  naturalized  in  his  country 
of  origin  an  irrebuttable  proof  of  an  intention  not  to  return  to  tbe 
naturalizing  country  ? 

"As  tbe  same  question  arises  under  the  treaties  with  Baden,  Bavaria, 
Hesse  Darmstadt,  and  AYiirtemberg,  I  propose,  in  response  to  tbe  in- 
quiries put  to  me,  to  give  it  a  detailed  examination.  In  doing  so  I  beg 
to  state  tbat  [  bave  given  careful  consideration  to  tbe  excellent  report 
from  Mr.  Deuster,  of  the  Foreign  Aftairs  Committee  of  tbe  House  of 
Eepresentatives,  submitted  on  tbe  ITtb  of  February,  1885. 

"No  legislation,  however,  took  i)lace  in  conformity  with  tbe  recom- 
mendations of  tbis  report,  and  I  am  obliged  to  consider  tbe  question 
irrespective  of  any  prescription  of  tbe  law-making  power.  Tbe  ques- 
tion, I  would  also  beg  to  say,  is  one  tbat  arises  constantly  in  tbe  munic- 
ipal jurisdiction  botb  of  Germany  and  tbe  United  States.  Tbe  j^o.sition 
tbat  I  now  i)r()pose  to  take  has  been  accepted  as  autboritative  in  both 
countries.  Tiiis  position  is,  tbat  a  statutory  permission  to  make  a  par- 
ticular mode  of  jtroof  of  a  contested  fact  admissible,  does  not  exclude 
otber  modes  of  proof;  and  tbat  wben  tbe  statutory  i)roof  is  produced 
it  is,  unless  otberwise  prescribed  in  tbe  statutes,  as  much  open  to  re- 
buttal as  are  otber  modes  of  juoof.  Tbis  jtosition  I  now  proceed  to 
illustrate  from  our  own  jurispru(U'nce,  remarking  tbat  tbe  s;ime  position 
is  taken  by  German  autlioriiics  (»n  tlie  law  of  evidence. 

379 


§  179  ]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [ciIAP.  VIl. 

"  (1)  I  notice,  in  the  first  place,  statutes  permitting-  depositions  to  be 
read  in  certain  classes  of  cases  in  wbich,  in  common  law,  they  would 
not  be  admissible.  Those  statutes  usually  run  in  the  same  words  as 
those  underscored  in  the  article  beibre  us.  They  provide  that  such 
proof  wm?/ be  received.  No  one  ever  i)retended  that  the  enactment  of 
such  a  statute  makes  the  depositions  so  ])rovided  for  the  exclusive 
mode  of  proof  of  the  litigated  facts,  nor  that  the  facts  they  state  are  ir- 
rebuttable. 

"  (2)  Another  illustration  may  be  found  in  the  statutes  providing  that 
exemjtlitication  of  deeds  may  be  received  in  evidence.  Here,  again,  no 
one  woukl  question  that  the  original  deed  would  be  admissible,  or  that 
the  existence  or  etlicacy  of  such  an  exemplitication  could  not  be  im- 
peached on  grounds  of  fraud  or  non-execution. 

"  (3)  A  third  illustration  may  be  found  in  the  statutes  which  provide 
that  the  statutes  of  foreign  states  maybe  proved  from  the  i)rintcd  stat- 
ute books.  Here,  again,  it  has  always  been  conceded  that  such  a 
statute  does  not  exclude  other  proof  of  foreign  statutes,  and  that  the 
evidence  which  statutes  are  supposed  to  give  may  be  rebutted. 

"I  now  proceed  to  take  up  more  particularly  the  question  whether 
statutes  providing  that  intent  may  be  proved  in  a  particular  way  pre- 
scribe such  way  as  exclusive  and  irrebuttable.  We  have  numeious 
statutes  of  this  class  in  this  country,  and  similar  statutes  or  Judicial 
rulings  are  to  be  found  in  German  jurisprudence. 

"I  notice,  in  jiarticular,  so  far  as  this  country  is  concerned,  the  fol- 
lowing illustrations: 

"  (1)  Statutes  which  prescribe  that  having  in  possession  counterfeit 
coin  in  quantities  may  be  proof  that  such  coin  is  held  for  illegal  pur- 
poses. ]^ow,  we  have  numerous  decisions  from  our  courts  to  the  effect, 
on  the  one  side,  that  such  proof  is  not  exclusive  proof  of  intent,  and  that 
on  the  other  side,  when  offered,  it  is  rebuttable. 

''  (2)  Statutes  have  also  been  enacted  in  several  States  providing  that 
carrying  dangerous  weapons  about  the  person  may  be  ])resumed  to  be  for 
an  illegal  object,  xsow,  in  no  case  under  such  statutes  would  it  be 
maintained  that  so  carrying  such  weapons  is  the  sole  proof  of  intent,  or 
that  such  proof,  when  admitted,  cannot  be  rebutted. 

"  (3)  We  may  also  turn  to  the  statutes  prescribing  that  having  illicit 
or  contraband  goods  in  possession  shall  l)e  regarded  as  i)roof  of  an  in- 
tention to  dispose  of  such  goods  in  violation  of  law.  Very  many  stat- 
utes of  this  class  have  been  passed  in  reference  to  the  sale  of  int<^xicat- 
ing  liquors,  and  similar  statutes  have  been  adopted  as  part  of  the  rev- 
enue system  of  the  United  States.  Here,  again,  it  would  not  be 
l)retended  either  that  the  possession  of  the  illicit  or  contraband  articles 
is  the  sole  i)roof  of  the  illegal  intent,  or  that  when  such  proof  is  offered 
it  could  not  be  rebutted. 

"(4)  The  fourth  illustration  may  be  found  in  the  recent  statutes 
adopted  in  England  and  the  United  States,  providing  that  i)arties  may 
be  witnesses  in  their  own  cases,  coupling  these  statutes  with  the  judicial 
interpretation  assigned  to  them,  that  parties,  when  their  intent  is  dis- 
puted, may  prove  what  that  intent  was.  Xo  one  in  this  country  would 
have  the  audacity  to  maintain  that  such  statutes  preclude  any  other 
proof  of  intent  than  that  which  the  parties  themselves  should  give,  and 
that  the  evidence  of  the  i)arties  when  given  should  be  irrebuttable. 

"The  North  German  code  provides  also  for  numerous  cases  in  which 
parties  may  be  admissible.  Yet  nothing  is  more  remarkable  in  German 
jurisprudence  than  the  elaborate  energy  with  ■which,  in  cases  of  all 

380 


CHAP.  VII.]  GERMAN    TEEATY.  L§  l'^^. 

classes,  extriusic  facts  are  appealed  to  for  the  purpose  of  giving  a  sup- 
plemeutary  proof  to  the  testimony  of  parties,  or  of  controverting  such 
testimony  by  contradi(;tory  proof. 

"I  therefore  aiaintain  that,  even  though  the  treaty  had  prescribed 
peremptorily  that  when  a  person  naturalized  in  the  one  country  resides 
more  than  two  years  in  the  other  country,  the  intent  not  to  return  is  to 
be  held  to  exist,  this  would  not  exclude  other  proof  of  an  intent  not  to 
return,  nor  would  it  be  insusceptible  of  rebuttal  by  proof  that  he  did 
intend  to  return.  Uur  courts  have  frequently  so  held  when  construing 
statutes  providing  that  intent  or  other  litigated  facts  are  to  be  proved 
in  a  pai'ticular  way.  But  the  treaty  contains  no  such  peremptory  direc- 
tion. It  does  not  say  that  the  intent  not  to  return  shall  be  held  to  exist, 
but  it  says  the  intent  not  to  return  may  be  held  to  exist. 

''  It  is  clear,  therefore,  that  this  method  of  proof  of  the  animus  ma- 
tiendi  is  not  the  only  mode  by  which  such  animuH  manendi  may  be  proved. 
It  would  be  ]ierfectly  com])etent  for  a  German  by  birth,  who  had  been 
naturalized  in  the  United  States,  to  renounce  his  naturalized  allegiance 
in  one  week  after  his  return  to  Germany.  It  would  be  perfectly  com- 
petent for  the  German  Government  in  such  cases,  or  in  cases  in  which 
the  returneil  salijcct  had  remained  over  two  years  in  Germany,  to  ofter 
other  proof  besides  that  of  the  remaining,  to  prove  that  he  had  intended 
to  resume  his  allegiance  of  birth. 

''And,  on  the  other  hand,  it  would  be  perfectly  competent  for  such  a 
citizen,  either  before  or  after  the  two  years  had  elapsed,  to  say  that  it 
was  his  intention  not  to  remain  in  Germany,  but  to  return  to  the  United 
States.  The  question,  it  will  be  observed,  is  closely  related  to  tbat  of 
domicil.  Xo  matter  how  long  a  resident  in  a  particular  country  has 
remained  there,  his  domicil  is  in  the  country  of  his  origin,  if  he  intends 
to  return  to  it  as  his  final  home.  ]S^o  matter  how  short  a  time  an  emi- 
grant m<iy  be  in  the  country  to  which  he  emigrates,  his  domicil  is  estab- 
lished there  if  he  intends  permanently  to  remain. 

"  For  the  construction  that  is  here  given  to  the  treaty  two  arguments 
drawn  from  the  condition  of  things  as  presented  to  the  negotiators  may 
be  here  adduced. 

"(1)  It  can  hardly  be  supposed  that  Germany  intended  to  repel  from 
her  soil  the  multitude  of  naturalized  citizens  of  the  United  States,  who, 
born  in  Germany,  desire  to  return  and  reside  there  for  periods  exceed- 
ing two  years. 

•'Iwill  take  as  an  illustration  of  this  Germans  naturalized  in  the 
United  States  who  go  to  Germany  for  literary  and  business  ])urposes. 
Many  of  these  persons  require  a  residence  of  over  two  years  in  Germany 
to  etiect  their  object,  and  it  is  most  unlikely  that  the  negotiators  in- 
tended to  exclude  irom  Germany  men  such  as  these,  whose  presence  in 
matters  of  liteiature  might  adorn,  and  in  matters  of  busniess  might 
benefit,  the  country  of  their  temporary  residence.  It  is  well  known  that 
the  selHug  agents  of  many  great  manufacturers  and  i)roducers,  both  in 
(Germany  and  the  United  States,  are  in  the  habit  of  remaining  often 
over  apcMiod  much  greater  than  two  years  in  the  i)lace  of  their  agency, 
and  it  cannot  becjuestioned  that  the  continual  i»resence  of  such  agents, 
retaining  as  they  <lo  their  allegian{;e  to  the  country  from  which  they  are 
sent,  is  ;;reatly  conducive  to  the  business  pr()s]>erity  of  the  country  in 
whicii  their  agency  is  executed.  Yet  the  clause  before  us  would  ])re- 
clu<le  inexorably  a  st;iy  of  such  agents  beyond  the  period  of  two  yeai'S. 
And  CAcn  a  more  striking  instance  of  tln^  iiiiproh;ibilit>  of  the  construc- 
tion 1  lieie  contest  is  to  be  found  in  the  cas(!  of  the  chiUlren  of  German 

381 


$^  179.]     CITIZENSHIP,  NATUKALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

parents  i]atur;ilizoil  in  the  United  States,  wlieii  sucli  cliiUlren  <?o  toGer- 
niauy  lor  edueation.  Several  tlunisaiid  studonts  IVoni  the  United  States 
are  said  at  ])resent  to  be  in  llfrniany.  A  lar^e  i)r()j)ortion  of  tlu'se  iuo 
children  of  Gernnins  natnralized  in  the  ITnitcd  States.  No  Ihoronuh 
course  of  education  in  (Jerniany  eonld  hv  ol)taiiU'<l  if  the  limit  of  study 
be  two  years.  The  benclits  of  such  thorough  course  of  study  both  to 
Germany  and  the  Unit»'d  States  cannot  be  dis]»utcd,  and  it  is  still  less 
open  to  disi)ute  that  there  are  multitudes  of  (Jerman  ])arents,  who, 
though  naturalized  in  and  truly  loyal  to  the  United  States,  are  attached 
to  the  literature  of  their  native  land  and  to  its  system  of  edu(;ation  ami 
discipline,  and  who  desire  that  their  chddren  sliould  have  the  advan- 
tages of  German  educaiional  institutions.  It  is  hardly  to  be  suj)i)oscd 
that  the  negotiators  of  this  treaty  intended  to  i)ut  a  stop  to  the  enjoy- 
ment of  such  advantages  by  the  children  of  naturalized  Germans  when 
they  aie  open  to  the  cliildreu  of  citizens  of  the  United  States  by  biitii. 
It  is  not  likely  that  the  German  negotiators  of  this  treaty  in  i)aiticular 
would  in  this  as  well  as  in  the  other  cases  have  discriminated  so  seriously 
against  their  own  country. 

"(2)  A  final  objection  to  this  construction  to  which  I  now  turn  has 
already  been  taken  by  the  American  minister  at  Berlin.  If  at  the  ex- 
])iration  of  two  years'  residence  in  Germany,  a  German  naturabzed  in 
the  United  States  loses  his  American  nationality,  he  becomes  without 
any  nationality  whatsoever,  so  far  as  the  treaty  is  concerned,  since  by 
the  treaty  there  is  no  ])rovision  made  for  the  resum])tion  of  his  German 
nationality.  Ue  would,  therefore,  be  in  the  extraordinary  condition  of 
a  j)ersou  without  any  national  ties  or  allegiance.  Tiiat  he  should  be 
allowed  to  resume  his  old  nationality  when  he  desires  is  not  strange; 
but  it  would  be  very  strange,  if,  without  any  such  desire  on  his  part  or 
anj-  action  justifying  it,  he  should  thus,  by  the  mere  expiration  of  time, 
be  absolutely  deprived  of  any  i)olitical  status  whatsoever. 

"  In  several  treaties  tnat  have  been  negotiated  by  the  United  States 
on  this  topic  it  is  provided  that  the  i)resumption  of  intent  drawn  from 
a  residence  of  over  t^o  years  sliQuld  be  open  to  rebuttal.  Perhaps,  as  a 
matter  of  excessive  caution,  it  might  be  desirable  to  adopt  an  arti(;le 
additional  to  the  treaty  before  us,  providing-  that  a  two  years' residence 
in  the  country  of  origin  should  only  be  regarded  us  prima  facie  proof  of 
renunciation  of  American  naturalization,  such  i)roof  to  be  opeu  to  cor- 
roboration on  the  one  side  and  to  rebuttal  on  the  other  side;  but  it 
should  be  clearly  understood  that  this  is  done  without  in  any  way  waiv- 
ing the  i)osition  that  this  incident  of  rebuttability  belongs  to  the  clause 
before  us  as  it  stands  in  the  treaty." 

Opiuion  of  Mr.  "Whartou,  law  oflicer  of  Department  of  State,  iuclosed  by  Mr. 
Bavard,  Sec.  of  State,  to  Mr.  Peudleton,  Dec.  18,  1885,     MSS.  Inst.,  Germ. ; 
For.  Eel.,  1885. 
As  to  negotiation  of  this  treaty,  see  supra,  ^  149. 

Under  the  concurrent  effect  of  article  1  of  the  treaty  with  Prussia  of 
1828,  and  of  article  1  of  the  treaty  with  the  North  German  Confederacy 
of  18GS,  ''Americans,  both  native  and  naturalized,  should  have  a  free 
and  equal  right  of  peaceable  sojourn  in  Germany  if  they  submit  to  the 
laws."  The  position  taken  by  Germany  that  these  provisions  "do 
not  conflict  with  the  position  that  returning  emigrants,  even  when 
recognized  as  naturalized  Americans,  may,  when  the  accompanying  cir- 
cumstances require,  be  cxi)elled  like  any  foreigner,  but  that  on  princiido 
382 


CHAP.  VII.]         LIABILITIES    OF    NATURALIZED    CITIZEN.  [§  180. 

this  right  will  be  invoked  only  when  maturely  considered  grounds  of  the 
public  welfare  compel,"  "  does  not  meet  with  the  assent  of  this  Govern- 
ment." "  This  Government  contends  that  in  the  absence  of  any  such 
voluntary  and  express  manifestation  of  intent  to  renounce  American 
citizenship,  our  citizens  can,  under  the  treaty  of  1808,  claim  recognition 
of  their  status  and  all  rights  of  sojourn  x^t'rtaining  thereto  during  the 
first  two  years  following  their  arrival  in  Germany."  *  *  *  "  The 
general  doctrine  of  the  right  of  a  nation  to  expel  obnoxious  foreigners, 
whose  ])resence  is  dangerous  to  its  peace  and  welfare,  from  its  shores,  is 
well  known  to  this  Government,  and  by  none  more  readily  acknowl- 
edged; but  this  right  was  not  lost  sight  of  in  framing  the  treaty  of  1808, 
and  while  the  right  is  admitted,  yet  its  particular  application  as  regards 
naturalized  Americans  is  considered  in  and  limited  by  that  treaty." 

Mr.  Bayard.  Sec.  of  State,  to  Mr.  Peudleton,  Mar.  12,  18b6.     MSS.  lust.,  Germ. 

See  same  to  same,  Jan.  28,  1886;  ibid.     Same  to  same,  Jan.  29,  1886;  ibid. 

See  App.,  vol.  iii,  §  179. 

IV.    LIABILITIES  OF  NATURALIZED  CITIZEN  ON  BETURNING  TO  NA TIVE 

LAND. 

(1)  While  voluxtakv  expatkiatiox  is  no  ground  for  adverse  proceedings, 
IT  IS  otherwise  as  to  acts  done  by  him  before  expatriation. 

§  180. 

"I  have  just  had  a  full  conversation  with  Baron  Gerolt,  the  Prussian 
minister,  in  relation  to  the  case  of  your  brother,  Henry  D'Oench.  The 
positions  maintained  by  this  Department  in  the  case  of  Koszta  will  be 
acted  on  in  all  cases  to  which  they  may  be  applicable;  but  it  is  appre- 
hended that  there  are  such  circumstances  of  difference  in  your  brother's 
case  as  may  embarrass  the  Government  in  their  efforts  to  procure  his 
discharge. 

"  Prussia  regarded  him  as  a  fugitive  from  justice  and  claimed  from  the 
authorities  of  Hamburg  his  extradition  as  a  matter  of  right,  and  Ilam- 
liurg  yielded  to  this  claim  as  a  matter  of  duty  arising  from  its  ])()litical 
connection  with  her.  Having  got  possession  of  his  person  and  brought 
him  within  her  jurisdiction,  as  she  contends,  in  a  strictly  legal  manner, 
she  maintains  her  right  to  inflict  upon  him  the  punishment  to  which  he 
has  been  sentenced  by  the  tribunals  of  the  country  for  a  violation  of  its 
laws  committed  while  he  was  a  subject  of  the  King  of  Prussia.  The 
change  of  national  character  subse(pient  to  the  alleged  offense  does  not 
release  an  offender  from  i)enalties  previously  incurred  when  legally 
brought  within  the  jurisdiction  of  the  country  whose  laws  have  been 
violate<l.  It  may  Ix;  found  that  in  this  respect  there  is  a  difference  be- 
tween the  case  of  your  brotlier  and  that  of  Jvoszta.  You  may,  how- 
ever, b(;  assiwed  that  tin's  Go\(MiiMient  will  us<'  all  proper  means  to 
effect  his  release." 

Mi.  .\]aicy,S<;c.ol'  Stale,  (o  .Mr.  D(Jcii.li,  >.'.)V.  KJ,  18".:i.     MSS.  Doin  Let. 

;j83 


§  180.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

Au  Austrian  subject  who  commits  an  oflonse  a.iiaiust  Austrian  laws, 
and  then,  alter  becoming  a  naturalized  citizen  of  the  United  States,  re- 
turns voluntarily  to  Austria,  cannot  rightfully  set  up  his  citizenship  in 
the  United  States  aa  a  bar  to  a  prosecution  in  Austria  for  such  an  olfense. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Jackson,  Apr.  (!,  IH.T).    M3S.  Inst.,  Austria.   To 
same  effect,  see  same  to  same,  Nov.  6, 1854  ;  ibid. 

"The  liability  of  a  citizen  of  the  United  States  before  the  courts  of 
ITanover  cannot  depend  upon  the  question  whether  ho  is  a  native  or 
naturalized  citizen,  but  ui)on  the  question  oidy  Avhether  he  has  com- 
mitted any  off'^nse  against  Hanoverian  law.  E.xpatriation,  as  you  have 
been  already  instructed,  is  no  offense,  and  we  cannot  permit  an  unrea- 
sonable distinction  to  be  made  between  dilferent  classes  of  our  citi- 
zens." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Wright,  Dec.  9,  1859.     MSS.  Iiisc,  Prussia. 
As  to  annoyances  to  wbicli  Frenchmen  naturalized  in  the  United  States  may  be 
subject  on  revisiti-ng  France,  see  Mr.  Fish,  Sec.  of  State,  to  Mr.  Pintard,  Fub. 
12,  1874.     JISS.  Dom.  Let. 

"In  granting  the  high  privilege  of  its  citizenship,  the  United  States 
does  not  assume  the  defense  of  obligations  incurred  by  the  party  to 
whom  it  accords  its  citizenship  prior  to  his  acquisition  of  that  right, 
nor  does  it  assume  to  become  his  attorney  for  the  prosecution  of  claims 
originating  i)rior  to  the  citizenship  of  the  claimant." 

Mr.  Fi^h,  Sec.  of  State,  to  Mr.  Davis,  Nov.  24, 1874.     MSS.  Inst.,  Germ. 

"  The  only  provision  in  the  treaty  touching  the  liability  of  the  citizen 
to  punishment  on  his  return  aj)pears  in  the  second  article,  that  a  natu- 
ralized citizen  on  his  return  to  Germany  remains  liable  to  trial  and  ])un- 
ishment  for  an  action  punishable  by  the  laws  of  Germany  Gommitted  he- 
fore  Ids  emigration.  This  limitation  is  plain,  and,  as  it  stands,  would 
exclude  offenses  which  consist  in  a  failure  to  perform  military  duty,  the 
obligation  to  which  arises  after  emigration." 

Same  to  same,  July  21,  1875.     MSS.  Inst.,  Germ. 

"  Your  letter  of  the  15th  instant,  inquiring  whether  a  naturalized 
American  citizen,  born  in  France,  would  be  subject  to  military  duty  in 
case  he  should  revisit  his  native  country,  has  been  received. 

"In  reply, I  must  inform  you  that  your  inquiry  belongs  to  a  class  re- 
specting wLich  the  Department  of  State  refrains  from  expressing  an 
authoritative  opinion  in  advance  of  a  case  actually  arising  and  calling 
for  diplomatic  intervention.  It  may,  however,  be  stated  that  the  De- 
partment's understanding  of  the  general  French  rule  in  such  cases  is, 
that  when  a  male  child  is  born  in  France,  the  lact  is  registered  at  the 
place  of  birth  and  transmitted  to  the  proper  prefecture  as  of  one  event- 
ually liable  to  n)ilitary  duty.  On  the  completion  of  the  twentieth  year 
the  individual  is  summoned  to  present  himself  at  a  designated  place. 
384 


CHAP.  VII.]       STAT L'S  ABROAD  OF  NATURALIZED  CITIZEN.  [§181. 

If  residing-  abroad,  the  notice  is  served  on  him  through  the  consul,  or 
through  the  parents  and  relations  residing  in  France." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Wollner,  Oct.  24,  1885.     MSS.  Dom.  Let. 

Whileanataralized  citizen  who  returns  to  his  native  country  is  liable 
like  any  other  person,  to  be  arrested  for  a  debt  or  a  crime,  he  cannot 
rightfully  be  punished  for  the  non -performance  of  a  duty  which  is  sup- 
])Osed  to  grow  out  of  his  abjured  allegiance.  An  arrest  of  a  former  sub- 
ject, who  has  become  naturalized  in  the  United  States,  cannot  be  justi- 
fied on  the  ground  that  he  emigrated  contrary  to  the  laws  of  his  original 
country. 

9  Op.,  356,  Black.,  1859. 

(2)  If  he  left  military  duty  due  and  unperformed,  he  may  be  held  to  it 

IF   HE   return  after  NATURALIZATION. 
§   181. 

"  The  Prussian  Government  requires  of  all  its  subjects  a  certain 
amount,  of  military  service.  However  onerous  this  requirement  may  be, 
it  is  purely-  a  matter  of  domestic  policy,  in  which  no  foreign  Government 
has  a  right  to  interfere.  It  appears  that  there  is  no  exemption  from  the 
obligation  to  render  this  service  in  favor  of  persons  wishing  to  leave  the 
country,  unless  they  apply  for  and  receive  from  the  proper  authorities 
what  is  termed  '  a  certificate  of  emigration.'  This  '  emigration  certifi- 
cate '  seems  like  an  ordinary  passport  to  be  granted  as  a  matter  of  course 
on  application.  When  the  vast  extent  of  the  Prussian  military  estab- 
lishment is  considered  and  its  importance  in  the  monarchy,  such  a  reg- 
ulation, in  reference  to  persons  wishing  to  emigrate,  who,  as  you  are 
aware,  now  amount  to  many  thousands  annually,  cannot  be  regarded  as 
otherwise  than  liberal.  But  even  if  a  different  system  i)revailed,  and  if 
the  previous  rendition  of  a  certain  amount  of  military  duty  were  made 
the  condition  sine  qua  non  of  granting  the  '  emigration  certificate,'  how- 
ever oppressive  the  rule  might  be,  a  foreign  Government  could  have  no 
right  to  interfere  with  its  execution. 

"  If,  then,  a  Prussian  subject  born  and  living  under  this  state  of  law 
chooses  to  emigrate  to  a  foreign  country  without  obtaining  the  '■  certifi- 
cate' which  alone  can  discharge  him  from  the  obligation  of  military 
service,  he  takes  that  step  at  his  own  risk.  He  elects  to  go  abroad 
under  the  burden  of  a  duty  which  he  owes  to  his  Government.  His 
departure  is  of  the  nature  of  an  escape  from  her  laws,  and  if,  at  any 
subsequent  period,  he  is  indiscreet  enough  to  return  to  his  native 
country,  he  cannot  complain  if  those  laws  are  executed  to  his  disad- 
vantage. His  case  resembles  that  of  a  soldier  or  sailor  enlisted  bycon- 
wcription  or  other  compulsory  i)rocess  in  the  army  or  navy.  If  he  should 
desert  the  service  of  his  country  and  thereby  render  himself  amenable 
to  military  law  no  one  would  expect  that  he  could  return  to  his  native 
S.  Mis.  1G2— VOL.  II 25  385 


§  181.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [cilAP.  VII. 

land  aud  bid  defiance  to  its  laws,  because  in  the  mean  time  he  might 
have  become  a  naturalized  citizen  of  a  foreign  state." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Barnard,  Jan.  14,  1853.    MSS.  lust.,  Prussia. 

"  This  Government  cannot  rightfully  interpose  to  relieve  a  naturalized 
citizen  from  the  duties  or  penalties  which  the  laws  of  his  native  country 
may  impose  upon  him  on  his  voluntary  return  within  its  limits.  When 
a  foreigner  is  naturalized  the  Government  does  not  regard  the  obliga- 
tions he  has  incurred  elsewhere,  nor  does  it  undertake  to  exempt  liiiu 
from  their  performance.  Ue  is  admitted  to  the  privileges  of  a  citizen 
in  this  country,  and  to  the  rights  which  our  treaties  and  the  law  of  na- 
tions secure  to  American  citizens  abroad.  In  this  respect  he  has  all 
the  rights  of  a  native-born  citizen,  but  the  vindication  of  none  of  these 
rights  can  require  or  authorize  an  interference  in  his  behalf  with  the 
fair  application  to  him  of  the  municipal  laws  of  his  native  country  when 
he  voluntarily  suVyects  himself  to  their  control  in  the  same  manner  and 
to  the  same  extent  as  they  would  apply  if  he  had  never  left  that  country. 
A  different  view  of  the  duties  of  this  Government  would  be  an  invasion 
of  the  independence  of  nations,  and  could  not  fail  to  be  productive  of 
discord ;  it  might  moreover  prove  detrimental  to  the  interests  of  the 
States  of  this  Union." 

Mr.  Man-y,  Sec.  of  State,  to  Mr.  Daniel,  Nov.  10,  1855.     MSS.  Inst.,  Italy. 

"  It  is  well  known  that  the  laws  of  most  of  the  German  states  require 
of  their  subjects  a  certain  amount  of  military  service.  If  they  emigrate 
before  they  perform  it,  and,  becoming  naturalized  abroad,  return  for 
any  inirpose  to  their  native  country,  they  are  still  liable  to  perform  the 
service." 

Mr.  Marcy,  See.  of  State,  to  Mr.  Florence,  Feb.  17,  1857.     MSS.  Doni.  Let. 

"  It  is  undoubtedly  true  that  this  Government  has  acquiesced  in  the 
opinion  expressed  by  IVJr.  Wheaton,  that  when  a  citizen  who  has  been 
liable  to  military  duty,  leaves  his  own  country  without  permission,  and 
without  having  performed  this  duty,  he  may  be  held  to  discharge  this 
liability  whenever  he  is  found  again  in  his  native  state.  Tliis  opinion, 
however,  is  regarded  by  this  Government  as  applying,  not  to  cases  of 
inchoate  liability,  but  to  cases  only  where  the  liability  has  become  com. 
plete.  To  speak  of  a  minor  as  liable  to  military  service,  simply  because, 
if  he  should  live  long  enough  in  the  country,  he  might  become  so,  could 
not  be  fairly  regarded  as  either  ai)propriate  or  just." 

Mr.   Cass,  Sec.  of  State,  to  Mr.   Sclileiden,  Apr.  9,  1859.     MSS.  Notes,  Hanse 
Towns. 

"  If  the  future  liability  to  do  military  duty  creates  a  perpetual  obli- 
gation wherever  the  party  may  be,  and  whatever  other  responsibili- 
ties he  may  have  incurred,  the  same  princii)le  will  enable  a  Government 
to  prevent  its  subjects  or  citizens   from  ever  leaving  its  dominions  or 
386 


CHAP.  VII.]       STATUS  ABROAD  OF  NATUEALIZED  CITIZEN.         [§181. 

chaugiug  their  borne.     It  would  be  a  practical  denial  of  all  liglit  of  ex- 
patriation, and  a  full  assertion  of  the  doctrine  of  perpetual  allegiance." 
Mr.  Cass,  Sec.  of  State,  to  Mr.  Wright,  May  12,'18o9.    MSS.  Inst.,  Prussia. 

"  The  position  of  the  United  States,  as  communicated  to  the  minister 
at  Berlin  for  the  information  of  the  Prussian  Government,  is  that  na- 
tive-born Prussians  naturalized  in  the  United  States  and  returning  to 
the  country  of  iheir  birth  are  not  liable  to  any  duties  or  penalties,  ex- 
cept such  as  were  existing  at  the  period  of  their  emigration.  If  at  that 
time  they  were  in  the  army  or  actually  called  into  it,  such  emigration 
and  naturalization  do  not  exempt  them  from  the  legal  penalty  which 
they  incurred  by  their  desertion,  but  this  penalty  may  be  enforced 
against  them  whenever  they  shall  voluntarily  place  themselves  within 
the  local  jurisdiction  of  their  native  country,  and  shall  be  proceeded 
against  according'  to  law.  But  when  no  present  liabilities  exist 
against  them  at  the  period  of  their  emigration,  the  law  of  nations,  in  the 
opinion  of  this  Government,  gives  no  right  to  any  country  to  interfere 
with  naturalized  American  citizens,  and  the  attempt  to  do  so  would  be 
considered  an  act  unjust  in  itself  and  unfriendly  toward  the  United 
States.  This  question  cannot,  of  course,  arise  in  the  case  of  a  natural- 
ized citizen  who  remains  in  the  United  States.  It  is  only  when  he  vol 
untarily  returns  to  his  native  country  that  its  local  laws  can  be  enforced 
against  him." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Hofer,  June  14,  1859.     MSS.  Dom.  Let. 

"  In  order  to  entitle  his  (a  naturalized  citizen's)  original  Government 
to  punish  him  for  an  oifense,  this  must  have  been  committed  whilst  he 
was  a  subject  and  owed  allegiance  to  that  Government.  The  oft'ense 
must  have  been  complete  before  his  expatriation.  It  must  have  been 
of  such  a  character  that  he  might  have  been  tried  and  punished  for  it 
at  the  moment  of  his  departure.  A  future  liability  to  serve  in  the  army 
will  not  be  sufficient,  because  before  the  time  can  arise  for  such  service 
he  has  changed  his  allegiance  and  has  become  a  citizen  of  the  United 
States.  It  would  be  quite  absurd  to  contend  that  a  boy  brought  to  this 
country  from  a  foreign  country  with  his  father's  family,  when  but  twelve 
years  of  age  and  naturalized  here,  who  should  afterwards  visit  the 
country  of  his  birth  when  he  had  become  a  man  might  then  be  seized 
and  compelled  to  perform  military  service,  because  if  he  had  remained 
there  tlnoughout  the  intervening  years,  and  his  life  had  been  spared, 
he  would  have  been  bound  to  perform  military  service.  To  submit  to 
such  a  i)rinciplc  would  be  to  make  an  odious  distinction  between  our 
naturalized  and  native  citizens." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Wright,  July  8,  18.')9.     MSS.  Inst.,  Prussia. 

"  This  Government  maintains  the  right  of  expatriation  aiul  nMtiuiil- 
izulion,  ;in<l  mainlains  also  that  if  a  foreign-born  citizen  naliiralized 
Iiere  returns  to  his  native  country  he  is  not  liable  to  any  mililury  duty, 


§  182.]    CITI/.ENSHIl',  NATURALIZATION,  AND  ALIKNAGE.     [CHAP.  YII. 

except  such  as  was  actually  due,  and  wliicli  he  had  been  called  upon  to 
perform  before  his  emigration." 

Mr.  Cass,  Sl-c.  of  State,  tb  Mr.  Mason,  July  ~'7,  ltt5'.).     MSS.  Inst.,  France. 

"  The  naturalized  emigrant  cannot  be  made  responsible  on  his  return 
ibr  any  military  duty  unless  he  had  been  actually  required  to  perlbrm 
it  before  his  emigration,  and  had  deserted  from  it." 

Mr.  Casa,  Sec.  of  State,  to  Mr.  W.  R.  Callioun,  Dec.  31,  1859.     MSS.  Inst., 
France. 

"  This  Department  is  frequently  called  upon  to  interpose  in  behalf  of 
naturalized  citizens  of  the  United  States,  who,  upon  temporary  visits 
to  their  native  countries,  are  subjected  to  arrest  and  imprisonment 
under  the  operation  of  these  conscription  laws.  When  any  such  case 
is  brought  to  the  attention  of  the  Department,  its  aid  and  protection 
is  never  withheld,  nor  has  this  Government  omitted  any  ()i)i)ortunity 
to  urge  upon  the  (jovernments  of  Europe  a  modilication  of  those  con- 
scription laws  in  so  far  as  their  operation  extends  to  or  affects  natural- 
ized citizens  of  the  United  States.  In  the  treaties  on  citizenship  and 
naturalization  Avhich  exist  between  the  United  States  and  several  of  the 
Governments  of  continental  Europe,  these  Governments,  while  liberal 
as  to  other  matters,  insist  upon  excepting  liability  for  undischarged 
military-  duties  from  the  schedule  of  native  obligations,  from  Avliich  the 
subject  is  to  be  considered  released  upon  having  effected  a  change  in 
his  original  nationality." 

Mr.  Fish,  Sec.  of  State,  to  Messrs.  Shorter  &,  Brother,  Mar.  V.i,  1873.     MSS. 
Doui.  Let. 

That  in  IJussia  any  Eussian  going  abroad  without  permission  would 
be  liable,  by  Eussian  municipal  law,  to  punishment,  whether  his  military 
duties  were  ]>eribrmed  or  not,  see  Mr.  Wurts  to  Mr.  Bayard,  St.  Peters- 
burg, June  14,  1885;  MSS.  Dispatches  Russia,  For.  Rel.,  1885.  But  in 
case  of  arrest  under  such  circumstances  the  Kussian  Government  gener- 
ally, at  the  request  of  the  United  States,  releases  the  party  under  con- 
ditions, "  but  this  is  regarded  as  a  concession  from  courtesy  and  not  of 
right."  "The  Eussian  Government  refuses  to  admit  the  right  of  a  for- 
eign state  to  exempt  by  naturalization  its  subjects  from  their  unfulfdled 
prior  duties  to  the  laud  of  their  birth."    Ibid. 

As  to  expnltsiou  from  Germany  in  such  cases,  see  ixfra,  §  206. 

As  to  liability  of  Frenchmen  naturalized  in  the  United  States  to  mil itarj' duty, 

see  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Myers,  Dec.  7,  1885.     MSS.  Dom.  Let. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Spriggs,  Jan.  12,  1886;  ibid. 

(3)  But  no  liability  von  subsequent  duty. 

§  182. 

By  the  decree  of  the  judicial  tribunal  of  Toulouse  in  1860,  Mr.  Puyoon, 

a  Frenchman  by  birth,  but  an  American  citizen  by  naturalization,  was 

discharged  from  the  military  service  into  which  he  had  been  required  to 

enter.     "I  concur  fully  with  you  in  opinion  that  this  case  and  that  of  Mr. 

388 


CHAP.  VII  ]       STATUS  ABROAD  OF  NATURALIZED  CITIZEN.  [§  182. 

Zeiter,  auotlier  American  naturalized  citizen  released  in  June  last,  un- 
der similar  circumstances,  by  a  judicial  tribunal  at  Wessenboarg,  recog- 
nize the  principle  that  Frenchmen  leaving  their  country  and  acquiring 
the  character  of  American  citizens,  agreeably  to  our  naturalization  laws, 
are  not  subject  to  compulsory  military  service  on  their  return  to  France 
as  temporary  residents.     *     *     * 

"  Three  principles  are  undeniably'  established  by  this  exposition  of 
the  French  law : 

"  1.  That  Frenchmen  have  the  right  to  expatriation,  and  the  right  to 
become  citizens  of  another  country. 

''  2.  That  b3'  such  expatriation  and  naturalization  they  cease  to  be 
French  citizens. 

"  3.  That  no  person  can  be  a  French  soldier  who  is  not  a  French  citi- 
zen, and  naturalization  abroad  being  thus  incompatible  with  service  in 
the  French  armies,  an  American  naturalized  citizen  is  not  subject  to 
the  operation  of  the  conscription  laws." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Faulkner,  Oct.  3,  1860.  MSS.  lust.,  France.  See 
infra,  $  20-2.  See  also  Mr.  Bayard  to  Mr.  Spriggs,  Jan.  12,  1886.  MSS.  Dom. 
Let. 

"  With  France,  our  ancient  and  powerful  ally,  our  relations  continue 
to  be  of  the  most  friendly  character.  A  decision  has  recently  been  made 
by  a  French  judicial  tribunal,  with  the  approbation  of  the  Imperial  Gov- 
ernment, which  cannot  fail  to  foster  the  sentiments  of  mutual  regard 
which  have  so  long  existed  between  the  two  countries.  Under  the 
French  law  no  one  can  serve  in  the  armies  of  France  unless  he  be  a 
French  citizen.  The  law  of  France  recognizing  the  natural  right  of  ex- 
patriation, it  follows  as  a  necessary  consequence  that  a  Frenchman,  by 
the  fact  of  having  become  a  citizen  of  the  United  States  has  changed  his 
allegiance  and  has  lost  his  native  character.  He  cannot,  therefore,  be 
compelled  to  serve  in  the  French  armies  in  case  he  should  return  to  his 
native  country.  These  princi{)les  were  announced  in  1852  by  the  French 
minister  of  war,  and  in  two  late  cases  have  been  confirmed  b}'  the  French 
judiciary.  In  these  cases  two  natives  of  France  have  been  discharged 
from  the  French  army  because  they  had  become  American  citizens.  To 
employ  the  language  of  our  present  minister  to  France,  who  has  rendered 
good  service  on  this  occasion,  'I  do  not  think  our  French  naturalized 
fellow-citizens  will  hereafter  experience  much  annoyance  on  this  sub- 
ject.' " 

President  Buchanan,  Fourth  Annual  Message,  18G0. 

"  The  United  States  found  it  necessary  to  resort  to  conscription  for 
its  own  military  service.  The  naturalized  citizens  generally  were 
neither  disloyal  nor  patriotic,  but  many  of  thorn  sought  escape  from  mil- 
itary duty  here,  under  the  influence  of  the  same  motives  which  had 
indnccd   tlicni   to  seek  immnnity  from  similar  service  in  their  native 


\^  182.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CHAP.  VIL 

country,  by  acquiring'  the  privileges  of  American  citizeii.slii]).  Tims  the 
Goverument  found  itscU'  committed,  in  an  extreme  conjunction  of  public 
affairs,  to  perplexing  coutroversies  with  foreign  powers,  in  resisting,  on 
the  one  hand,  their  claims  for  the  exemption  from  our  military  service  of 
persons  who  appealed  to  their  protection,  and,  on  the  other,  the  enforc- 
ing of  claims  for  the  exemption  of  a  like  class  from  military  service  in 
foreign  countries,  on  the  ground  of  their  having  acquired  the  rights  of 
citizenship  in  the  United  States.  The  President  has  decided  that  it  is 
not  expedient  to  urge  questions  of  the  latter  sort  in  the  present  crisis 
beyond  the  limits  of  appeal  to  the  good  will  and  friendly  disposition  of 
foreign  powers.  We  ought  to  discourage  rather  than  encourage,  so  far 
as  possible,  the  return  of  naturalized  foreigners,  as  well  as  the  emigra- 
tion of  our  own  citizens  to  Europe." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Motley,  A])r.21,  18G3.     MSS,  Inst.,  Austria. 
That  aliens  are  not  goucrally  compollablo  to  military  service,  see  infra,  §  202. 

"Ou  the  other  hand,  there  has  been  no  reservation  on  the  part  of  the 
United  States  in  regard  to  the  i>rinciple  that  the  process  of  naturaliza- 
tion in  this  country  completely  absolves  the  person  complying  with  it 
from  foreign  allegiance,  whoever  may  have  been  his  sovereign,  ami  in- 
vests him  with  the  right  equally  with  native-born  citizens  to  such  pro- 
tection and  care  of  the  Government  of  the  United  States  as  it  can,  in 
conformity  with  treaties  and  the  law  of  nations,  extend  over  him,  wher- 
ever he  may  sojourn,  whether  in  the  land  of  his  nativity  or  in  any  other 
foreign  country.  Of  course,  the  United  States  do  not  claim  or  hold 
that  any  such  naturalized  citizen,  when  transiently  traveling  or  sojourn- 
ing for  a  longer  or  shorter  period  in  a  foreign  country,  can  refuse  sub- 
mission to  the  sovereign  authoritj^  and  obedience  to  the  laws  in  the  coun- 
try of  his  temporary  residence.  All  citizens  of  the  United  States,  when 
passing  through  or  dwelling  in  foreign  countries,  owe  obedience  and 
submission  to  the  laws  of  those  countries." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Mar.  22,  186(j.    MSS.  lust.,  Gr.  Brit. 

"The  result  of  our  late  experience  is  that  a  foreign  passport  may  be 
safely  taken  as  furnishing  presumptive  evidence  of  a  title  to  exemption 
from  military  service  so  long,  at  least,  as  the  Government  which  grants 
the  passport  shall  be  found  to  be  acting  in  good  faith  and  in  conformity 
with  the  law  of  nations. 

"2d.  That  when  a  person  representing  himself  to  be  an  alien,  and 
whether  producing  a  passport  or  not,  is  conscripted,  he  shall  be  at  lib- 
erty to  present  his  claim,  with  evidence  in  its  support,  to  a  competent 
military  tribunal,  by  which  the  case  shall  be  heard  summarily,  a  dis- 
charge by  such  military  tribunal  to  be  final.  If,  on  the  contrary,  the 
claim  of  an  alien  is  overruled  by  the  military  tribunal,  then  the  dis- 
charge, with  the  facts  relative  to  the  case,  shall  be  remitted  to  the  min- 
ister of  state  charged  with  the  conduct  of  foreign  affairs. 
390 


CHAP.  VII.]       STATUS  ABROAD  OF  NATURALIZED  CITIZEN.         [§  182. 

"At  every  stage  of  the  case  the  representatives  of  the  nation  whose 
protection  is  invoked  are  allowed  to  intervene." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Bigelow,  May  7,  18G(i.  MSS.  lust.,  France. 
See,  as  to  passports,  infra,  ^  Wlff-  As  to  exemption  of  aliens,  see  infra, 
§202. 

For  Prince  Bismarck's  opinion  as  to  the  effect,  under  the  treaty  of  1868,  of  the 
naturalization  of  Germai)S  in  the  United  States  on  their  obligation  to  per- 
form military  service  in  Germany,  in  case  of  their  temporary  return  thither, 
see  Senate  Ex.  Doc.  51,  2d  sess.,  40th  Cong.;  quoted  siq)ra,  §  149. 

As  to  exemption  in  Austria  of  returning  naturalized  citizens  from  military 
duty,  see  Mr.  Fish,  Sec.  of  State,  to  Mr.  Fisher,  July  8,  1870.  MSS.  Dom. 
Let. 

As  to  Hesse,  see  Mr.  Fish  to  Mr.  Magnus,  June  13,  1870 ;  ibid. ;  Mr.  Fish  to 
Mr.  Kanders,  July  12, 1870 ;  ibid. 

As  to  North  Germany,  see  Mr.  Fish  to  Mr.  Gietz,  Fob.  8,  1871 ;  ibid. 

"A  person  having  served  the  required  three  years  and  being  placed 
on  the  reserve  rolls,  having  emigrated  in  time  of  peace,  when  no  exist- 
ing obligation  to  perform  military  service  existed,  and  having  become 
naturalized  in  good  faith  after  a  residence  of  five  years,  and  who,  al- 
though temporarily  in  Germany,  intends  in  good  faith  to  return  and 
reside  in  the  United  States,  appears  to  be  secured  by  the  terms  of  the 
treaty  from  j)unishment  for  a  failure  to  jjerform  military  service  when 
the  obligation  arises  after  his  emigration." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  July  22,  1875.     MSS.  Inst.,  Germ.     See,  as 

to  treatj'  with  Germany,  supra,  $  149. 
As  to  two  years'  limitation,  see  supra,  ^  179. 

"  So  far  as  the  knowledge  of  this  Department  extends,  the  effective 
working  of  the  treaty  during  the  ten  years  and  more  of  its  existence 
has  not  proved  a  hardship  to  bona  fide  naturalized  citizens  whose  de- 
parture from  their  native  land  has  not  been  marked  by  any  violation 
of  law,  and  whose  return  to  Germany  has  been  orderly  and  for  private 
ends  of  business  or  pleasure.  In  contrary  cases  it  is  hardly  to  be  ex- 
pected that  any  reciprocal  agreement  acceptable  to  both  nations  would 
absolutely  secure  a  returning  naturalized  citizen  from  the  consequences 
of  a  punishable  act  committed  on  German  territory  either  prior  to  his 
expatriation  or  subsequent  to  his  return." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Williams,  of  the  House  Committee  of  Foreign 
Affairs,  Feb.  5,  1879.     MSS.  Report  Book.    See  surpra,  $  149. 

"As  a  general  rule,  naturalized  citizens  of  the  United  States  of 
America  of  German  birth  are  protected  by  their  American  citizenship 
from  liability  to  service  in  the  German  army  when  they  temporarily  re- 
visit that  country.  The  exceptions  to  that  rule  are  those  arising  under 
the  second  article  of  the  naturalization  treaty  between  the  United  States 
of  America  and  Germany;  as,  for  example,  when  a  man  has  emigrated 
while  in  actual  service  (desertion)  or  when  enrolled  for  duty  and  await- 
ing a  call  to  service;  or  if,  after  attaining  the  age  fixed  by  German  law 

391 


§  182.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  VIL 

for  military  service,  lie  is  jiiiilty  of  some  act  or  omission  with  tlie  design 
of  evading  such  service. 

"It  is  impossible  for  this  Department  to  say  in  advance  what  molesta- 
tion naturalized  American  citizens  of  German  birth  may  meetvrith  from 
the  authorities  of  Germany  by  reason  of  questions  arising  as  to  their 
liability  to  military  dnty  there.  In  case  of  arrest,  however,  they  may 
be  assured  of  all  proper  protection  from  this  Government  and  its  repre- 
sentatives." 

Mr.  Blaine,  Sec.  of  St.ato,  to  Mr.  Lang,  Apr.  7,  1881.     MSS.   Dom.   Let.     See 
aiqira,  ^  149. 

"Naturalization  is  regarded  as  a  purely  domestic  act,  whereof  all 
the  conditions  are  controlled  by  the  law  of  the  naturalizing  country; 
and  while  in  the  interest  of  reciprocal  good  feeling  the  United  States  has 
been  willing  to  stipulate  by  treaty  that  under  certain  circumstances  the 
act  of  naturalization  here  should  not  protect  an  Austrian,  naturalized 
in  the  United  States  and  voluntarily  returning  to  the  Empire,  from  the 
consequences  of  violating  military  law,  we  cannot  admit  that  any  rela- 
tion in  which  an  alien  may  stand  toward  his  own  Government  should 
be  a  bar  to  naturalization  as  an  American  citizen,  if  the  applicant  be 
within  the  jurisdiction  of  the  United  States  and  comjily  with  all  the 
requirements  of  the  statute. 

"Sections  J,  2,  and  3  of  Article  II  of  the  treaty  aim  to  except  from 
j)rotection  by  naturalization,  in  case  the  naturalized  person  returns  to 
his  former  country,  all  cases  where  the  offense  of  evading  military  duty 
shall  be  com])leted  by  some  intentional  act  of  the  offender,  committed 
while  yet  within  Austrian  jurisdiction.  The  hypothetical  case  presented 
does  not  seem  to  come  within  this  broad  principle." 

Mr.  Freliughnyseu,  Sec.  of  State,  to  Mr.  Taft,  Aug.  25, 1883.     MSS.  lust. ,  Austria. 
As  to  treaty  with  Austria,  see  svpra,  §  141. 

"From  the  responses  previously  made  to  your  inquiries  in  Mr.  Wag- 
ner's behalf,  it  appears  that  the  brunt  of  the  charge  against  him  was 
that  he,  a  minor,  quitted  Kussiaa  jurisdiction  in  advance  of  attaining 
the  age  when  he  might  be  called  upon  for  military  service.  He  was 
born  at  Lodz  in  1852,  and  in  1874  became  liable  to  military  service. 
He  came  to  the  United  States  in  1869,  five  years  before  the  liability 
could  rest  upon  him.  When  the  technical  offense,  styled 'evasion  of 
military  duty,'  which  is  the  sole  charge  against  him,  began  to  exist  as 
a  tangible  accusation,  lleinhardt  Wagner  had  already,  by  residence  in 
the  United  States  for  more  than  three  years  preceding  his  majority, 
acquired  under  our  statutes  the  preliminary  rights  of  citizenship.  No 
nation  should  assert  an  absolute  claim  over  one  of  its  subjects  under 
circumstances  like  these,  and  it  is  thought  improbable  that  Eussia  will 
persist  in  such  a  claim,  even  if  made.  There  would  be  no  limit  to  such 
a  pretension,  for  the  taking  of  a  male  infant  out  of  Russia  might  be  re- 
garded with  equal  propriety  as  an  'evasion'  of  eventual  military  serv- 
392 


CHAP.  VII.]  CHILDREN.  [§  183. 

ice.  It  is  tantamount  to  asserting  a  right  to  punish  any  male  Eussian 
who,  having  quitted  Eussian  territory  and  become  a  citizen  of  another 
state,  may  afterward  return  to  Russia. 

"This  claim  is  different  from  that  put  forth  by  some  Governments  for 
the  completion  of  military  duty  fully  accruing  while  the  subject  is  withiu 
theirjurisdiction,  and  actually  left  unfuliailed.  It  is,  for  example,  claimed 
that  a  subject  who  leaves  the  country  when  called  upon  to  serve  in  the 
army,  and  becomes  a  citizen  or  subject  of  another  state,  may,  if  he  re- 
turns to  the  former  jurisdiction  while  yet  of  age  for  military  duty,  be 
compelled  to  serve  out  his  term.  This  rule  appears  harsh  to  us,  and 
yet  it  goes  no  further,  as  a  matter  of  fact,  than  a  contention  that  an 
obligation  of  service  accruing  and  unpaid  while  the  subject  is  a  resi- 
dent of  the  country,  continues,  and  is  to  be  extinguished  in  kind  by  per- 
formance of  the  alleged  defaulted  service.  But,  harsh  as  it  is,  it  is 
wholly  different  from  the  infliction  of  vindictive  punishment,  as,  for  in- 
stance, exile  for  the  constructive  evasion  of  an  inchoate  obligation.  To 
exact  the  fulfillment  of  an  existing  obligation  is  one  thing;  to  inflict 
cori)oral  punishment  for  not  recognizing  a  future  contingent  obligation 
is  another."  , 

Mr.  Frelhigliuysen,  Sec.  of  State,  to  Mr.  Hunt,  Dec,  22, 1883.     MSS.  Inst.,  Russia. 
As  to  treaties  with  Russia,  see  supra,  §  159. 

Papers  relative  to  the  compulsory  enlistment  of  American  citizens 
in  the  army  of  Eussia  prior  to  1860  will  be  found  in  Senate  Ex.  Doc. 
38,  36th  Cong.,  1st  sess.  See  also  Senate  Ex.  Doc.  4,  40th  Cong.,  1st 
sess. 

The  correspondence  of  the  United  States  with  Prussia  in  1861  as  to 
liabilitv  of  naturalized  citizens  to  military  duty  will  be  found  in  the 
Brit,  and  For.  St.  Pap.  for  1861-'62,  vol.  52,  1232\  For  correspondence 
with  other  powers  on  the  same  subject  see  same  work,  1862-63,  vol.  53 5 
1863-'64,  vol.  54. 

As  to  expulsion  from  Germany  of.Germans  naturalized  in  tlie  United  States  on 
ground  of  non-performance  of  military  service,  see  infra,  ^  206. 

The  treaties  with  specific  sovereignties  as  to  naturalization  are  uoticed  supra, 
n  141  #. 

V.   CHILDREN. 

(1)  Born  ix  the  United  States  generally  citizens. 

§  183. 

The  fourteenth  amendment  to  the  Constitution  of  the  United  States 
provides  that  "  all  persons  born  or  naturalized  in  the  United  States  and 
subject  to  the  jurisdiction  thereof,  are  (;itizens  of  the  United  States  and 
of  the  State  wherein  they  reside." 

By  section  1002,  Revised  Statutes,  "all  persons  born  in  the  United 
States  and  not  subject  to  any  foreigti  i)ower,  excluding  Indians  not 
taxed,  are  declared  to  be  citizens  of  thc^  United  States." 

As  will  l)eseen  elsewhere  Indians  arc  held  not  witiiin  this  clause,  not 
being  "subject  to  the  jiiiisdiction  of  the  (Tiiited  Stat<'s."  (/?//'m,  §  106, 
supra,  §  173.)     The  same  reasoning,  it  may  be  argued,  would  exclude 

393 


$  183.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

children  born  in  the  United  States  to  foreigners  here  on  transient  resi- 
den(;e,  8ueh  children  not  being  by  the  law  of  nations  "  snbjeet  to  the 
jurisdiction  of  the  United  States." 

See  infra,  ^  173,196,208;  Whart.  Com.  Am.  Law,  $585;  McKay  r.Campbell,  2 
Sawyer.  118;  Elk  v.  Wilkins,  112  U.  S.,  94. 

"In  reply  to  the  inquiry  which  is  made  by  yon  in  the  same  letter 
whether  'the  children  of  foreign  parents  born  in  the  United  States,  but 
brought  to  the  country  of  which  the  father  is  asubject,  and  continuing  to 
reside  within  thejurisdiction  of  their  father's  couutry,  are  entitled  to  pro- 
tection as  citizens  of  the  United  States,'  I  have  to  observe  that  it  is  pre- 
sumed that,  according  to  the  common  law,  any  person  born  in  the  United 
States,  unless  he  be  born  in  one  of  the  foreign  legations  therein,  may  be 
considered  a  citizen  thereof  until  he  formnlly  renounces  hi;^  citizenship. 
There  is  not,  however,  any  United  States  staaite  containing  a  i)rovi8- 
iou  upon  this  subject,  nor,  so  far  as  I  am  aware,  has  there  been  auj' ju- 
dicial decision  in  regard  to  it." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Mason,  Jiiue  6,  1854.     MSS.  Inst.,  France. 

"The  only  mode  of  adoption  by  which  a  private  citizen  can  confer 
citizenship  on  an  alien  is  that  of  marrying  a  female  of  forfeign  birth." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Morris,  Feb.  26,  1870,     MSS.  Inst.,  Turkey. 

A  citizen  of  the  United  States  cannot  by  adopting  a  child  of  foreign 
nationality,  confer  on  such  child  the  privileges  of  citizenship  in  the 
United  States. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Kead,  Jan.  6,  1872.    MSS.  Dom.  Let. 

But  if  an  adoption  is  good  by  the  laws  of  any  one  of  the  States  of  the 
Union,  to  which  an  infant  is  taken  by  his  adoptor,  with  the  con.sent  of 
the  guardians  of  the  ])arty  adopted,  and  accouipanied  by  bona  fide  change 
of  domicil,  it  would  internationally  make  tjjc  person  adopted  subject  to 
the  laws  of  the  State  of  the  adoption.- 

"It  results  from  inquiry  that  Johu  Peter  Sbarboro  was  born  in  Phila-- 
delphia  November  17, 1852,  and  that  his  father  was  not  naturalized  until 
November  0,  18G0.  The  14tli  amendment  to  the  Constitution  declares 
that '  all  persons  born  or  naturalized  in  the  United  States  and  subject 
to  thejurisdiction  thereof,  arc  citizens  of  the  United  States.' 

"  This  is  simply  an  afiirmance  of  the  common  law  of  England  and  of 
this  country,  so  far  as  it  asserts  the  status  of  citizenship  to  be  fixed  by 
the  place  of  nativity,  irrespective  of  parentage.  The  qualification,  'and 
subject  to  the  jurisdiction  thereof,'  was  probably  intended  to  exclude 
the  children  of  foreign  ministers,  and  of  other  persons  who  maj'  be  within 
our  territory  with  rights  of  extraterritoriality.  It  is,  indeed,  possible  to 
read  the  language  as  meaning  icliile  or  ichen  they  are  subject  to  thejuris- 
diction of  the  United  States,  but  this  would  denationalize  all  citizens, 
native  or  naturalized,  the  moment  they  entered  a  foreign  jurisdiction. 
394 


CHAP.  VII.]  CHILDREN.  [§  183. 

A  contemporaneous  exposition  of  this  amendment  was  given  by  the  3d 
section  of  the  act  of  Congress  of  July  27,  18GS  (15  Stat.  L,,  224)." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Marsh,  May  19,  1871.     MSS.  Inst.,  Italy. 

"The  iindersigned,  Secretary  of  State  of  the  United  States,  has  the 
honor  to  acknowledge  the  receipt  of  the  note  which  his  excellency  the 
Baron  Lederer  addressed  to  him  on  the  2Ist  day  of  November,  and  has 
given  very  careful  consideration  to  the  facts  with  reference  to  the  na- 
tionality of  Francois  A.  Heinrich  therein  set  forth. 

"Baron  Lederer  brings  to  the  knowledge  of  the  undersigned,  for  the 
first  time,  the  imjiortant  fact  that  Heinrich  had,  on  more  than  one  occa- 
sion, availed  himself  of  Austrian  protection,  and  traveled  as  an  Aus- 
trian subject  under  an  Austrian  passport. 

"  This  fact,  in  connection  with  the  provisions  of  the  treaty  signed  on 
the  20th  of  September,  1870,  induced  a  reconsideration  of  the  question, 
and  of  the  opinion  which  had  been  expressed  without  the  information 
conveyed  by  Baron  Lederer's  note  with  regard  to  Hein rich's  nation- 
ality. 

"  The  whole  question  has  been  submitted  to  the  examination  of  the 
Attorney-General,  who  is  of  opinion  that,  inasmuch  as  the  treaty  above 
referred  to  provides  that  citizens  of  either  country  (the  Austro-Hun- 
garian  monarchy  and  the  United  States)  who  have  resided  in  the  terri- 
tories of  the  other  uninterruptedly  for  five  years,  and  during  such  resi- 
dence have  become  naturalized  citizens  of  the  other  country,  are  to  be 
treated  as  such ;  and  while,  as  a  general  rule,  a  person  born  in  this 
country,  though  of  alien  parents  who  have  never  been  naturalized,  is 
under  the  laws  of  the  United  States  deemed  a  citizen  of  the  United 
States,  that  the  treaty  clearly  recognizes  the  right  of  an  American  citi- 
zen to  change  his  nationality  and  become  a  subject  of  Austria. 

"Applying  these  views  to  the  case  of  Francois  Heinrich,  the  Attor- 
ney-General, in  view  of  the  statements  in  the  note  of  Baron  Lederer, 
that  under  the  laws  of  Austria  a  foreign-born  child  of  Austrian  i)arents 
takes  the  nationality  of  the  latter,  and  is  regarded  as  an  Austrian,  and 
that  Francois  Heinrich  has  at  diflerent  periods  obtained  passports  from 
the  Austrian  Government  and  traveled  under  their  protection  as  an 
Austrian  subject,  taken  in  connection  with  the  length  of  time  during 
which  he  has  resided  m  Austria,  thinks  these  circumstances  may  be 
viewed  as  a  sufficient  manifestation  of  consent  on  his  part,  at  those 
l^eriods  especially,  to  be  a  member  of  that  nation ;  and  that  such  con- 
sent co-operating  with  the  law  of  Austria,  to  which  reference  has  been 
made  (by  which  he  says  it  would  seem  children  of  Austrian  parents 
born  abroad  are  naturalized  at  their  birtli),  and  acc()mj)anied,  nioii'over, 
by  continued  residence  in  that  country,  effected  a  complete  change  in 
his  nationality  from  American  citizenship  to  Austrian  citizenship. 

"The  Attorney-General  concludes  by  saying,  that,  in  view  of  all  the 
facts  and  circmiistancu's  apjx'aiing  in  this  case,  he  is  of  tiie  (»i)iiii()ii  tliat, 

395 


§  ISP).]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VIL 

iintU'i-  the  i)rovisions  of  the  aforesaid  couvention,  Francois  A.  ITeinrlcli 
should  be  hehl  by  the  United  States  to  be  an  Austrian  subject,  and 
treated  as  such  ;  tliat  he  is  not  an  American  citizen,  and  consequently 
not  entitled  to  protection  from  this  Government. 

''Following-  this  opinion  of  the  Attorney-General,  the  undersigned 
lias  the  honor  in  rei)ly  to  the  question  addressed  to  him  by  Baron  Le- 
derer,  in  his  note  of  the  (Jth  of  April  last,  to  say  that  Francois  A.  Ilein- 
rich  is  not,  and  will  not  be,  regarded  as  a  citizen  of  the  United  States, 
so  long  as  he  remains  within  the  jurisdiction  of  the  Austro-IIungariau 
dominion." 

Mr.  Fish,  See.  of  State,  1o  Baron  Lcdorer,  Dec.  24, 1872.     MSS.  Notes,  Austria; 
For.  Rel.,  187;J. 

So  far  as  concerns  our  own  local  law,  a  child  born  in  the  United 
States  to  a  British  subject,  is  a  citizen  of  the  United  States. 

Mr.  Fish,  Seo.  of  State,  to  Mr.  Ellis,  Apr.  14,  187.'?.     MSS.  Dom.  Let. 

The  minor  child  of  a  Spaniard,  born  in  the  United  States  and  while 
in  the  United  States,  or  in  any  other  country  than  Spain,  is  a  citizen  of 
the  United  States.  "The  United  States  has,  however,  recognized  the 
principle  tliat  persons  although  entitled  to  be  deemed  citizens  by  its 
laws,  may  also,  by  the  law  of  some  other  country,  be  held  to  allegiance 
in  that  country." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Gushing,  Feb.  IG,  1877.     MSS.  Inst.,  Spain. 

"The  Constitution  provides  that  all  persons  born  or  naturalized  in  the 
United  States  and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States.  Congress  has  declared  by  law  that  the  right  of  expa- 
triation is  inherent  and  inalienable  to  all  citizens  of  the  Eepublic.  In 
Si)eck's  case,  while  it  is  true  that  the  boy  by  virtue  of  his  nativity,  may 
claim  citizenship  of  theUnited  States,  yet  his  father  being  an  alien  and 
continuing  to  remain  a  Swiss  citizen  and  having  removed  the  boy  Joseph, 
Avhile  a  minor,  without  the  jurisdiction  of  the  United  States,  his  status, 
as  well  as  his  domicil,  according  to  well-understood  principles  of  in- 
ternational and  munici])al  law,  follows  that  of  the  father  until  the  boy 
attains  his  majority.  Should  he,  after  reaching  the  age  of  twenty-one 
years,  voluntarily  return  to  the  United  States,  and  make  it  his  perma- 
nent home,  asserting  the  right  of  citizenship  in  virtue  of  his  nativity,  his 
])olitical  status  would  then  be  determined  according  to  the  law  and  cir- 
cumstances of  the  case." 

Mr.  F.  W.  Seward,  Acthig  Sec.  of  State,  to  Mr.  Fish,  Aug.  20,  1878.    MSS.  Inst., 
Switz. 

A  chihl  who,  born  in  tlie  United  States  to  French  parents,  goes  in  his 
minority  to  Frnnce,  and  there  remains  voluntarily  after  he  has  become 
of  full  ago,  may  be  held  to  have  abjured  his  American  nationality. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Noyes,  Dec.  31,  1878.     MSS.  Inst.,  France.     See 
Mr.  Evarts  to  Mr.  Hitt,  Feb.  \\\,  1880  ;  ihUl, 

39G 


CHAP.  VII.J  CHILDREN.  [§  183. 

Sons  born,  in  this  conutry,  to  a  German  here  naturalized,  are,  though 
they  were  taken  bacli  for  a  few  years  during  their  minority  to  Germany, 
citizens  of  the  United  States,  they  having  returned  to  this  country  be- 
fore arriving  at  full  age,  and  electing  it  as  their  domicil  when  arriving 
at  full  age.     It  follows  from  this  "  that  any  property  which  they  may 
now  possess  in  the  German  dominions,  and  any  property  which  they 
may  hereafter  acquire  in  that  country    *     *     *     must  be  held  to  be 
free  from  liability  on  grounds  arising  from  their  refusal  to  submit  them- 
selves to  that  Government  for  the  x)erformance  of  military  service." 
■  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Wliite,  June  6,  1879.    MSS.  Iust.,Gerra.    For 
further  proceedings  in  this  case,  see  Mr.  Evarts  to  Mr.  Wliite,  July  28, 
1880;    ibid.    Mr.  Frelinghnysen   to  Mr.  Evarts,  Feb.  15,  1882;  ibid.     Mr. 
Frelingliuysen  to  Mr.  Kassou,  Feb.  7, 1885;  ibid. 

Minor  children,  born  in  this  country  to  naturalized  citizens,  afterwards 
temporarily  visiting  Germany,  are  entitled  to  passports  to  return  to  the 
United  States  on  the  eve  of  their  coming  of  age. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Wliite,  Apr.  23, 1880.     MSS.  Inst.,  Germ. 

A  person  born  in  the  United  States  has  a  right,  though  he  has  inter- 
mediately been  carried  abroad  by  his  parents,  to  elect  the  United  States 
as  a  nationality  when  he  arrives  at  full  age. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Cramer,  Nov.  12,  1880.     MSS.  Inst.,  Denmark. 
See  Mr.  Evarts  to  Uv.  Hitt,  Feb.  10, 1880.     MSS.  Inst.,  France. 

The  child  born  to  an  alien  in  the  United  States  loses  his  citizenship 
on  leaving  the  United  States  and  returning  to  his  parent's  allegiance. 
Mr.  Blaine,  Sec.  of  State,  to  Mr.  O'NeiJl,  Nov.  15,  1881.     MSS.Dom.Let. 

A  child  born  in  this  country  to  a  German  subject  is  subject,  if  he  put 
himself  in  German  jurisdiction,  to  German  laws. 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  O'Neill,  Aug.  8,  1882.     MSS.  Dom  Let. 

A  child  born  in  this  country  to  a  foreign  father,  when  taken  by  his 
father  abroad,  acquires  the  father's  domicil  and  nationality. 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Cramer,    June  4,  1883.     MSS.  lust., 
Switz. 

"  Your  No.  3G,  of  the  13th  of  October  last,  reports  your  recent  action 
upon  two  naturalization  cases,  concerning  which  you  desire  the  super- 
visor3'  consideration  of  this  Department. 

"  The  first  ca.se,  of  Ludwig  Uausdiug,  appears  to  have  been  decided 
according  to  the  law  and  the  facts.  It  is  stated  that  having  been  born 
in  the  United  States  of  a  Saxon  subject,  he  was  removed  to  his  father's 
native  land,  where  he  has  ever  since  remained,  although  his  father  has 
subsequently  become  a  citizen  of  the  United  States.  You  refused  a 
])assport  on  the  ground  that  the  api)licaiit  was  born  of  Saxon  subjects, 
tetii])orarily  in  the  United  States,  and  was  never  "dwelling  in  the  United 
States,"  either  at  the  tirn(!  of  or  since  his  parent's  naturalization,  and 

3!)7 


§  183.]    CITIZENSHIP,  NATUKALIZATIOX,  AND  ALIENAGE.    [CHAP.  VII. 

that  Le  was  not,  therefore,  naturalized  by  force  of  the  statute,  section 
2172,  Ileviseil  Statutes. 

''  1 1  does  not  appear  from  your  statement  whether  Wilhelm  Haus'ling;, 
the  lather,  had  dechired  liis  intention  to  become  an  American  citizen 
before  the  birtli  of  Ludwi.u'.  AVhile  this,  if  it  were  estabHshed,  wouhl 
h'nd  an  appearance  of  hardshij)  to  an  adverse  decision  upon  his  claim 
to  be  deemed  a  citizen,  yet,  even  in  this  ease,  as  the  statutes  stand,  your 
decision  would  conform  to  the  letter  of  the  law,  section  21G8,  which  admits 
to  citizenship,  on  taking  the  oath  prescribed  by  law,  the  widow  and 
children  of  an  alien  who  has  declared  his  intention  but  dies  before  com- 
pleting his  naturalization.  By  i)roviding  for  special  exemption  excludes 
the  idea  of  any  other  exemption,  as  for  instance  in  the  case  of  the  non- 
completion  of  the  father's  naturalization  before  thepermament  removal 
of  the  minor  son  from  the  Jurisdiction  of  the  United  States. 

"Xot  being-  naturalized  by  foreeof  the  statute,  Ludwigllausding  could 
only  assert  citizenship  on  the  ground  of  birth  in  theUnited  States;  but 
this  claim  would,  if  presented,  be  untenable,  for  by  section  1992,  Revised 
Statutes,  it  is  made  a  condition  of  citizenship  by  birth  that  the  person 
be  not  subject  to  any  foreign  power. 

'•This  last  consideration  serves  also  to  answer  the  'quaere'  which  you 
annex  toyour  statement  of  the  Ilausdingcase.  You  ask:  'Can  one  born 
a  foreign  subject,  but  within  the  United  States,  make  theoption  after  his 
majority,  and  while  still  living  abroad,  to  adopt  the  citizenship  of  his 
birthjdace  ?  It  seems  not,  and  that  he  must  change  his  allegiance  by 
emigration  and  legal  process  of  naturalization.'  Sections  1992  and  1993 
of  the  Revised  Statutes  clearly  show  the  extent  of  existing  legislation  ; 
that  thefact  of  birth,  under  circumstances  implying  alien  subjection,  estab- 
lishes of  itself  no  right  of  citizenship ;  and  that  the  citizenship  of  a  per- 
son so  born  is  to  be  acquired  in  some  legitimate  manner  through  the 
operation  of  statute.  Xo  statute  contemplates  the  acquisition  of  the 
declared  character  of  an  American  citizen  by  a  person  not  at  the  time 
within  the  jurisdiction  of  the  tribunal  of  record  which  confers  that  char- 
acter. 

"  Your  decision  granting  a  passport  in  the  case  of  Johannes  Weber  is 
approved.  In  a  case  like  this  much  depends  upon  the  bona  fides  of  the 
applicant,  and  his  evident  intent  to  return  to  the  United  States,  as  to 
which  the  minister  must  necessarily  be  the  best  judge  of  his  duty  in 
granting  or  withholding  a  passport. 

*•'  Your  second  '  quaire,'  as  to  the  meaning  of  the  phrase  '  if  dwelling 
in  the  United  States,'  found  in  section  2172,  Revised  Statutes,  is  one  of  a 
hypothetical  class  as  to  which  the  general  rule  of  the  Department  coun. 
sels  no  decision  being  made  in  advance  of  a  specific  case  arising.  ZS"© 
such  case  has,  so  far  as  I  know,  been  presented  for  the  decision  of  the 
Executive  or  courts  of  the  United  States. 

*'  It  would,  however,  be  in  fact  difificuit  to  see  how,  in  the  light  of  sec- 
tion 1999  of  the  Revised  Statutes,  which  declares  any  decision  of  any 
398 


CHAP.  VII.]  CHILDREN.  [§  183. 

officer  of  the  Goveruiuent  tending  to  restrict  the  right  of  expatriation 
and  change  of  allegiance  to  be  '  inconsistent  with  the  fundamental 
principles  of  the  Eepublic,'  and  of  section  2000,  which  declares  that '  all 
naturalized  citizens  of  the  United  States  while  in  foreign  countries  are 
entitled  to  and  shall  receive  from  this  Government  the  same  protection 
of  persons  and  property  which  is  accorded  to  native-born  citizens,'  any 
branch  of  the  Government  could  well  maintain  that  the  children  of  per- 
sons duly  naturalized  in  the  United  States,  and  therefore  also  citizens 
by  law,  should  lose  that  status  by  the  mere  act  of  passing  beyond  the 
territorial  jurisdiction  of  the  United  States,  especially  if  they  passed 
within  the  limits  of  a  third  state  not  of  the  original  allegiance,  which 
could  under  no  circumstances  lay  claim  to  their  subjection.  It  can  be 
seen  how  such  an  interpretation  might  regard  a  citizen  of  the  United 
States  as  a  citizen  of  no  country  whatever,  through  the  sole  fact  of  setting 
foot  outside  of  our  territory,  and  how,  by  again  setting  foot  within  our 
borders,  his  right  of  citizenship  might  be  deemed  to  revive  unimpaired. 

''As  you  remark,  '  the  construction  of  the  phrase  as  meaning  that  the 
minor  children  who  become  citizens  through  the  naturalization  of  their 
father  must  be,  at  the  time  of  their  father's  naturalization,  dwelling  in 
the  United  States,  would  allow  a  young  man  to  join  his  father  in  the 
United  States  a  week  before  his  naturalization,  and  return  to  his  native 
land  a  week  after,  a  full-fledged  American  citizen,  while  still  in  his  minor- 
ity, and  without  renunciation  of  old  allegiance  or  swearing  to  the  new.' 
That  such  a  thing  is  possible  is  a  defect  in  our  existing  naturalization 
laws. 

"  The  President,  in  his  last  message,  called  the  attention  of  Congress 
to  the  advisability  of  recasting  the  statutes  in  this  respect,  in  order  to 
remove  obscurities  and  contradictions,  and  surround  the  acquisition  of 
American  citizenshii)  with  safeguards  commensurate  with  the  high  priv- 
ileges and  obligations  which  it  confers  and  creates." 

Mr.  Frelinghinecn,  Sec.  of  State,  to  Mr.  Kasson,  Jan.  15,  1885  ;  MSS.  Inst., 

Germ. ;  For.  Eel.,  1885. 
For  cognate  instructions,  see  infra,  $  184. 
As  to  right  of  such  parties  to  protection,  see  infra,  §  190. 

Your  Xo.  24,  in  regard  to  the  request  of  Eichard  Greisser  for  a  pass- 
port, has  been  received.  In  reply,  I  have  to  say  that  on  general  prin- 
ciples of  international  law  I  do  not  consider  that  Eichard  Greisser  is  a 
citizen  of  the  United  States.  He  was,  it  is  true,  born  in  1807  in  the 
State  of  Ohio.  Ilis  father,  however,  was  at  that  time  a  German  sub- 
ject, and,  so  far  as  we  can  gather  from  the  facts  stated,  domiciled  in 
Germany.  The  son,  therefore,  so  far  as  concerns  his  international  re- 
lation.s,  was  at  the  time  of  his  birth  of  the  same  nationality  as  his 
father.  Ilad  he  remained  in  this  country  till  he  was  of  full  age  and 
then  elected  an  American  nationality,  he  would  on  the  same  general 
juinciples  of  international  law  be  now  clothed  with  American  national- 
ity.   But  so  far  from  this  being  the  case,  he  left  this  (country  with  his 

399 


§  183.]     CITIZENSHIP,  NATUKALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

inotber  when  lie  was  under  two  years  old,  apparently  Joiuino-  the  father 
in  Germany,  to  wliieh  country  the  latter  had  previously  returned,  and 
then,  after  bis  father's  death,  moved  with  his  mother  to  Switzerland. 
His  technical  nationality  and  doniicil  would,  therefore,  during  his 
minority  and  his  lather's  life,  be  in  Germany,  and  afterwards  in  Switzer- 
land. 

'^  It  does  not  follow,  however,  that  thoufjh  on  ^jeneral  princiides  of  in- 
ternational law  his  nationality  and  doniicil  are  in  Germany,  he  may 
not  in  this  country  by  force  of  our  special  legislation  be  a  citizen  of  the 
United  States  arid  as  such  entitled  to  a  passport.  We  have  in  the 
naturalization  legislation  of  modern  civilized  states  numerous  illustra- 
tions of  the  rule  that  the  law  of  nations,  as  to  particular  matters,  may 
be,  as  to  such  particular  countries,  either  expanded  or  contracted  by  local 
legislation,  and  we  have,  therefore,  to  inquire  how  far  the  rule  above 
stated  is  aflected  by  the  legislation  of  the  United  States. 

"By  section  1992,  lievised  Statutes,  enacted  in  18GG— 

" '  All  persons  born  in  the  United  States,  and  not  subject  io  any  foreign 
l)oicer,  excluding  Indians  not  taxed,  are  declared  to  be  citizens  of  the 
United  States.' 

''  By  the  fourteenth  amendment  of  the  Constitution  of  the  United 
ratified  in  1808 — 

"  'All  persons  born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof  are  citizens  of  the  United  States  and  of  the  State 
in  which  they  reside.' 

"  l^ichard  Griesser  was  no  doubt  born  in  the  United  States,  but  he  was 
on  his  birth  '  subject  to  a  foreign  power'  and  'not  subject  to  the  juris- 
diction of  the  United  States.'  He  was  not,  therefore,  under  the  statute 
and  the  Constitution  a  citizen  of  the  United  States  by  birth  ;  and  it  is 
not  pretended  that  he  has  any  other  title  to  citizenship." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Wiiicbester,  Nov.  28, 1885.    MSS.  Inst.,  Switz.; 
For.  Eel.,  1885. 

In  this  case  it  is  also  to  be  observed  that  the  applicant,  according  to 
the  test  applied  above  by  Mr.  F.  W.  Seward,  August  20,  1878,  was  at 
the  time  of  the  apiilicatiou  not  "subject  to  the  jurisdiction"  of  the 
United  States.     See  de  Bourry's  case,  infra. 

"It  has  been  settled  by  frequent  rulings  in  this  Department  that  when 
a  child,  who  is  born  in  the  United  States  to  a  father  temporarily  here 
residing,  returns  with  his  father  to  the  latter's  country  of  native  alle- 
giance, such  child  cannot,  during  his  minority  and  his  residence  in  such 
country,  call  on  this  Department  to  intervene  in  his  behalf  against  such 
country.  In  the  present  case,  the  child  was  posthumous;  the  father, 
though  he  had  taken  up  a  'permanent  residence'  here,  and  had  there- 
fore acquired  a  Xew  York  domicile,  had  been  here  but  four  years  at  the 
time  of  his  death,  and  had  not  been  naturalized ;  and  the  mother,  in 
1870,  when  the  child  was  one  year  old,  took  him  back  to  Germany,  where 
she  has  resided  Avith  him  ever  since.  An  interesting  question  hero 
100 


CHAP.  VII.]  CHILDREN.  [§  183. 

arises  as  to  wlietlier  a  widowed  mother  can,  by  the  principles  of  inter- 
national law,  change,  by  her  own  action  without  the  approval  of  the 
court  of  the  child's  domicil,  the  child's  domicil  and  nationality.  That 
it  cannot  be  so  changed  is  held  by  eminent  continental  jurists.  (Bar,, 
§  31;  1  Foelix,  pp.  54,  55,  94;  Denisart,  Domicile,  §  2.)  '  Der  Wittwe,' 
says  Bar,  whose  authority  both  in  Germany  and  this  country  is  de- 
servedly high,  'kann  dagegen  das  Eecht  das  Domicil  ihrer  minderjiih- 
igen  Kinder  zu  veriindern,  uicht  zugestanden  werden.'  To  the  same 
effect  is  Lamar  v.  Micou,  112  U.  S.,  452.  According  to  this  view,  the 
mother  of  the  child  in  question  could  not,  on  the  bare  facts  stated  to 
us,  change  his  domicil  so  as  to  withdraw  him  from  the  protection  of  the 
United  States.  But  as  he  is  now  in  Germany,  the  question  is  one  which, 
if  military  service  be  insisted  on,  must  be  presented  to  the  German 
Government  for  consideration,  and  their  views  heard,  before  this  De- 
partment can  express  any  final  determination  in  this  relation. 

"The  treaty  of  1SG8  provides  that  'citizens  of  the  North  German  Con- 
federation, who  become  naturalized  citizens  of  the  United  States  and 
shall  have  resided  uninterruptedly  within  the  United  States  five  years, 
shall  be  held  by  the  North  German  Confederation  to  be  American  citi- 
zens, and  shall  be  treated  as  such.'  This,  however,  does  not  say  that 
persons  not  falling  within  this  class  who  are  domiciled  in  the  United 
States  shall  not  obtain  from  Germany  those  rights  to  which  such  i^er- 
sons  are  entitled  by  international  law." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Liebmann,  July  9,  1886.     MSS.  Dom.  Let.; 
infra,  $  190. 

"  Your  No.  192,  of  the  1st  instant,  in  reference  to  Mr.  Freiderich  de 
Bourry's  claim  for  a  passport,  is  now  before  me,  and  I  take  the  oppor- 
tunity to  express  my  satisfaction  with  the  clearness  of  its  statements 
and  the  accuracy  of  the  distinctions  it  makes. 

"  Freiderich  de  Bourrj^,  according  to  the  allegations  in  his  memorial, 
was  born  in  the  city  of  New  York,  on  December  4,  18G2,  of  Austrian 
parents,  then  temporarily  resident  in  that  city,  and  there  remained  with 
them  until  he  was  five  years  of  age,  when  he  accompanied  his  mother 
to  Europe.  In  18G9  he  and  his  mother,  residing  in  Vienna,  were  joined 
in  that  city  by  his  father,  who  died  in  1880.  Under  the  Austrian  Gov- 
ernment Freiderich  de  Bourry,  the  memorialist,  has  remained  until  this 
day,  employed  in  the  Austrian  railway  service.  It  is  not  claimed  that 
his  father  was  ever  naturalized,  or  made  the  requisite  declaration  of 
his  intention  to  become  a  citizen  of  the  United  States,  or  in  any  way 
signified  his  intention  formally  to  abjure  his  Austrian  allegiance.  Nor 
is  it  pretended  that  when,  on  December  5, 1883,  the  present  memorialist 
arrived  at  full  age,  he  took  any  steps  to  make  or  record  his  election  of 
citizen.ship  in  the  United  States.  For  several  years  before  that  date 
he  was  old  enough,  with  his  mother's  permission,  which  it  is  ])lain  from 
her  affidavit  she  was  ready  to  give,  to  come  to  the  conntry  of  his  birth 
S.  Mis.  102— VOL.  II 2  ;  401 


§184.]     CITIZENSHIPj  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VII. 

if  it  liacl  been  the  country  of  his  intended  citizenship.  ITe  alleges  no 
effort  of  this  kind,  nor  any  act  or  event  indicating  his  election  of  United 
States  citizenship  when  he  arrived  at  full  age. 

"  Under  these  circumstances  it  is  not  necessary  for  me  to  consider  the 
question  whether  Freiderich  de  Bourry  was,  at  the  time  and  his  birth,  a 
citizen  of  the  United  States  under  the  naturalization  statutes  and  the 
fourteenth  amendment  of  the  Constitution  of  the  United  States.  It  is 
enough  to  say  that  he  has  exhibited  no  such  i)roof  of  an  election,  on  ar- 
riving at  full  age,  of  United  States  citizenship  as  now  entitles  him  tea 
l)assport.  An  election,  in  a  case  of  dual  or  doubtful  allegiance,  which 
is  the  utmost  which  can  be  claimed  in  the  present  case,  must  be  made  on 
attaining  majority,  or  shortly  afterwards,  and  must  be  signified  by  acts 
plainly  expressive  of  intention,  such  as  immediate  preparations  to  re- 
turn to  the  elected  country. 

"In  the  present  case  there  is  no  evidence  that  an  election  to  become 
a  citizen  of  the  United  States  was  ever  made  or  intended,  but  on  the 
contrary  all  the  facts  create  the  presumption  that  an  Austrian  domicile 
was  chosen. 

"  The  passport  must  therefore  be  refused." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Leo,  July  24,  188G.     MSS.  Inst.,  Austria. 

The  widow  of  a  citizen  of  one  State  does  not,  by  marrying  again  and 
taking  the  infant  children  of  the  first  husband  from  that  State  to  live 
with  her  at  the  home  of  the  second  husband  in  another  State,  change 
the  domicil  of  the  children,  nor  can  a  guardian  of  such  children,  with- 
out leave  of  court. 

Lamar  v.  Micou,  112  U.  S.,  452.     See  Wliart.  Confl.  of  Laws,  ^  116. 

Children  born  in  the  United  States  of  alien  parents,  who  have  never 
been  naturalized,  are  native-born  citizens  of  the  United  States. 
10  Op.,  328,  Bates,  1802.     See  U.  S.  v.  Rhodes,  1  Abb.  U.  S.,  28. 

(2)   So   OF   CUILDKEX   OF   NATURALIZED   CITIZENS. 

§  184. 

By  section  2172  of  the  Eevised  Statutes  "  the  children  of  persons  who 
have  been  duly  naturalized  under  any  law  of  the  United  States,  or  who, 
previous  to  tlie  passing  of  any  law  on  that  subject  by  the  Government 
of  the  United  States,  may  have  become  citizens  of  any  one  of  the  States, 
under  the  laws  thereof,  being  under  the  age  of  twenty  one  years  at  the 
time  of  the  naturalization  of  their  parents,  shall,  if  dwelling  in  the 
United  States,  be  considered  as  citizens  thereof;  and  the  children  of 
persons  who  now  are,  or  have  been,  citizens  of  the  United  States,  shall, 
though  born  out  of  the  limits  and  jurisdiction  of  the  United  States,  be 
considered  as  citizens  thereof;  but  no  i)erson  heretofore  proscribed  by 
any  State,  or  who  has  been  legally  convicted  of  having  joined  the  army 
of  Great  Britain  during  the  Revolutionary  war,  shall  be  admitted  to 

402 


CHAP.  VII.]  CHILDKEN.  [§  184. 

become  a  citizen  witbont  the  consent  of  the  legislature  of  the  State  in 
which  such  person  was  proscribed." 

As  to  special  provisions  for  naturalization  of  widows  and  children  of  declarants 
■who  have  made  declaration  bnt  died  before  naturalization,  eee  Rev.  Stat., 
$  21Gd;  as  to  seamen,  $  2174. 

The  4th  section  of  the  act  of  April  14,  1802  (Eev,  Stat.,  §  2172) 
(making  children  of  naturalized  persons  citizens,  and  extending  citizen- 
ship to  children  born  abroad  to  citizens),  "  is  only  a  municipal  law,  and 
can  have  no  effect  beyond  the  jurisdiction  of  this  country,  and  especially 
in  Holhind,  if  it  should  be  in  conflict  with  the  local  law  of  that  country. 
If,  therefore,  Johannes  (whose  citizenship  was  contested)  voluntarily 
placed  himself  within  Dutch  jurisdiction,  his  rights  and  his  obligations 
must  be  measured  by  the  laws  of  Holhind  and  not  by  the  laws  of  the 
United  States." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Wendell,  Sept.  7, 1854.     MSS.  Dora.  Let. 

But  this  only  holds  good  on  the  supposition  that  the  act  in  question 
is  not  in  iact  in  harmony  with  the  law  of  nations,  which  it  is,  as  the 
law  of  nations  is  now  understood. 

That  a  municipal  law  when  conflicting  with  the  law  of  nations  has  of 
itself  no  extraterritorial  effect,  see  snpra,  §  9. 

When  the  naturalized  father  of  a  minor  child,  born  in  this  country, 
returns   to  his  native  land  and  resumes  his  original  allegiance,  the 
child  on  arriving  at  full  age,  may  elect  which  allegiance  he  will  accept. 
Mr.  Seward,  Sec.  of  State,  to  Mr.  Banks,  Apr.  7,  1868.     MSS.  Dom.  Let. 

"  The  laws  of  the  United  States  on  the  subject  of  naturalization  pro- 
vide, in  relation  to  persons  situated  as  your  sons  are,  '  that  the  children 
of  persons  duly  naturalized  under  any  of  the  laws  of  the  United  States, 
*  *  *  being  under  the  age  of  twenty-one  years  at  the  time  of  their 
parents  being  so  naturalized  or  admitted  to  the  rights  of  citizenshiii, 
shall,  if  diccUing  in  the  United  States,  be  considered  as  citizens  of  the 
United  States.'  Assuming  that  your  three  sons  were  born  in  France, 
accompanied  you  to  this  country  and  have  continued  to  reside  here 
(the  fact  is  not  distinctly  stated  in  your  letter),  they,  together  with 
your  son  born  here,  are,  under  the  provision  just  cited,  to  be  con- 
sidered, when  dwelling  in  the  United  States,  citizens  of  the  United 
States,  with  all  the  rights  and  privileges  attaching  to  that  character, 
and  entitled  to  the  protection  which  this  Government  extends  to  all 
its  citizens  in  the  exercise  and  enjoyment  of  those  rights. 

"  This  Department  does  not  as  a  rule  undertake  to  give  information 
upon  the  laws  of  other  countries,  nor  as  to  the  construction  which  those 
countries  m;iy  put  upon  their  own  lasvs  in  applying  them  to  persons 
found  within  their  territorial  jurisdiction. 

"  It  is  undeistood  to  be  a  pio\ision  of  the  law  of  France  tliat  when  a 
Frenchman  has  lost  his  (piality  of  French  citizen  he  cannot  serve  in  the 
armies  of  that  country,  and  that  when  that  quality  has  been  lost  for 

4UJ 


§  184.]     CITIZENSHIP,  XxVTUKALIZATION,  AND  ALIENAGr.    [CIIAP.  VII. 

over  three  years  he  will  not  be  punitshed  for  '  insouniissioii.'  These 
questions,  however,  have  to  be  determined  in  a  civil  court  in  France, 
and  it  should  be  remembered  that  during  their  pendency  the  party  is 
liable  to  arrest,  detention,  and,  it  may  be,  imprisonment,  besides  the 
expense  of  employinj:  counsel. 

"In  a  recent  dispatch  from  Mr.  Washburne,  our  minister  at  Paris, 
it  is  stated  that  naturalized  citizens  of  the  United  States  born  in 
France,  upon  returning  to  the  i)lace  of  their  birth  have  been  of  late 
sometimes  subjected  to  great  inconvenience  and  expense  on  account  of 
claims  of  the  nature  alluded  to  for  their  military  service. 

"The  Department  cannot,  in  view  of  these  facts,  give  any  advice  to 
persons  situated  as  j'our  sons  are,  upon  the  propriety  or  otherwise  of 
their  subjecting  themselves  to  such  possible  annoyances  and  incon- 
veniences by  visiting  France.  On  these  questions  the  party  must  judge 
for  himself,  with  the  knowledge  that  he  personally  assumes  the  risk 
and  responsibility  of  such  expenses  and  inconveniences  as  he  may 
thereby  be  subjected  to." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Jouffret,  Feb,  11, 1874.     MSS.  Doui.  Let. 

"  Your  Xo.  974  of  the  13th  ultimo,  presents  a  recent  case  in  which 
application  was  made  to  your  legation  for  a  passport  for  the  minor  son 
of  a  naturalized  citizen  of  the  United  States,  the  father  having  been 
born  in  Germany,  while  the  son  was  born  in  Mexico.  You  refer  to  a 
law  of  Mexico,  by  which  children  born  in  that  country  of  alien  parents 
shall,  on  attaining  their  majority,  elect  for  either  Mexican  citizenship, 
or  that  of  their  parents,  and  in  view  of  those  antecedents  you  inquire, 
(1st)  whether  it  is  the  practice  of  the  Department  to  issue  separate  pass- 
ports to  the  minor  children  of  citizens  of  the  United  States  unaccompa- 
nied by  their  parents;  and  (2d)  whether,  in  the  case  repoi  ted,  you  would 
have  been  justified  in  issuing  a  separate  passport  to  the  minor  son. 

''  It  is  observed  that  you  omit  to  mention  whether  the  father  was  a 
naturalized  citizen  of  the  United  States  at  the  time  of  the  birth  of  the 
son.  If  not,  residence  in  the  United  States  is  a  condition  of  the  son's 
citizenship.  (See  Ilev.  Stat.,  §  2172.)  It  is  presumed,  however,  from 
your  statement,  that  the  father  was  an  American  citizen  sojourning  in 
a  foreign  land  at  the  time  of  the  son's  birth. 

"  Answering  your  inquiries  in  general  terms,  and  without  assuming  to 
decide  the  case  now  i^resented  without  fuller  information,  it  may  be  ob- 
served : 

"First.  That  a  passport  can  properly  be  issued  to  a  minor  of  discreet 
age,  unaccompanied  by  his  ])arents,  when  the  facts  show  honest  and 
bona  fide  motive  for  soliciting  a  separate  i)assport;  and, 

"  Secondly.  That,  until  coming  of -age,  a  child  born  abroad  of  Ameri- 
can parents  and  continuing  abroad,  is  an  American  citizen,  and  as  such 
entitled  to  a  passport.  If  on  attaining  majority  the  laws  of  the  country 
of  his  birth  require  option  for  either  his  fnherited  or  his  native  citizen- 
404 


CHAP,  yil.]  CHILDREN.  [§  184 

ship,  and  if  he  chooses  to  avail  himself  of  such  laws  and  renounce  his 
American  status,  that  is  another  matter  ;  and  such  option  is  all  that  is 
contemplated  by  the  Mexican  law  referred  to,  as  it  is  here  understood 
from  your  description.  But  that  statute  does  not  make  such  a  minor  a 
Mexican  during  minority,  nor  prevent  his  remaining  an  American  un- 
der American  law;  still  less  can  it  leave  him  a  nondescript  with  no  na- 
tionality whatever." 

Mr.  F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Foster,  July  2, 1879.    MSS.  Inst., 

Mex. ;  For.  Rel.,  1879. 
As  to  Mexican  statute,  see  supra,  §  172a. 

"  Your  dispatch,  No.  996,  of  the  18th  ultimo,  presents  an  interesting 
question  concerning  the  citizenship  and  rights  of  the  minor  children  of 
the  late  James  W.  Smith,  which  had  been  submitted  to  you  by  the  late 
consul-general. 

"It  appears  that,  after  lending  important  services  to  the  republicans 
of  Mexico  during  the  French  intervention,  and  the  Empire  of  Maximil- 
lian  in  1866-'67,  Mr.  Smith  took  active  part  iu  187G  in  the  successful 
revolutionary  movenient  of  General  Diaz,  became  a  colonel  in  the  Mex- 
ican army,  and  was  understood  to  be  in  such  service  at  the  time  of  his 
death,  of  which  the  date  is  given  as  June  5,  1870. 

"  You  further  quote  the  provision  of  the  Mexican  law  of  January  30, 
1856,  enacting  the  naturalization,  apparently  without  any  additional 
formality  beyond  the  fact  of  service,  of  a  foreigner  who  '  accepts  any 
public  ofidce  of  the  nation,  or  belongs  to  the  army  or  navy,'  and  in  view 
of  this  you  ask  iu  general  terras  for  the  views  of  the  Department  upon 
the  status  of  Americans  accepting  service  under  the  Mexican  Govern- 
ment, and  also  specific  instructions  on  the  points  presented  in  Mr. 
Strother's  letter  to  you  of  the  15th  ultimo,  a  copy  of  which  you  transmit. 

"  In  answer  to  the  first  point  presented  by  you,  I  may  observe  that 
on  the  27th  of  July,  1868,  Congress  declared  that  the  right  of  expatria- 
tion is  a  natural  and  inherent  right  of  all  people,  indispensable  to  the 
enjoyment  of  'life,  liberty,  and  the  pursuit  of  happiness.'  (Section 
1999,  Eevised  Statutes.)  The  act  of  changing  allegiance  and  citizenship 
must  necessarily  conform  to  the  laws  of  the  country  where  the  Ameri- 
can who  voluntarily  expatriates  himself  becomes  a  citizen  or  subject. 
Ko  law  of  the  United  States,  for  instance,  can  make  a  Mexican  citizen 
out  of  one  of  our  own  citizens,  or  prevent  him  from  becoming  a  Mexican 
citizen  by  the  operation  of  Mexican  law.  Mr.  Smith,  by  tlie  act  of  vol- 
untarily taking  military  service  under  the  Government  of  Mexico  while 
a  law  was  in  existence  by  which  such  an  act  on  his  part  conferred  and 
involved  the  a.ssumi)tion  of  Mexican  citizenship,  must  be  deemed  to  have 
understaudingly  conformed  to  that  Mexican  law,  and  of  his  own  accord 
embraced  INIexican  citizenship,  tinder  the  enactment  of  Congress,  pre- 
viously quoted,  no  jx-rmission  of  Ihc,  Government  of  the  United  States 
is  necessary  to  the  exercise  of  the  right  of  «'xi»atriati(ni.  This  answers 
the  first  question  pnt  by  Mr.  Strother. 

405 


vN  184.]     CITIZENSniP,  XATUKALIZATIOX,  AND  ALIENAGE.    [CIIAP.  VII. 

"  The  second  ami  third  inquiries  resjiecting  the  status  of  the  minor 
children  are  not  so  easy  to  answer.  The  two  sous  of  Mr.  Smith,  aged 
respectively  seven  and  ten  years  at  the  time  of  their  father's  death,  were 
undoubtedly  American citizousby  birth,  inasnuich  as  the  father's  change 
of  allegiance  occurred  after  the  birth  of  the  youngest  child.  If  within 
the  jurisdiction  of  the  United  States  their  right  to  American  citizenship 
would  be  unimpaired,  and  even  if  witliin  JMexicau  jurisdiction  during 
minority  they  Nvould,  in  the  absence  of  any  j\lexican  law  specilically  at- 
taching the  altered  status  of  the  fiither  to  his  minor  children  within  Mex- 
ican jurisdiction,  be  still  properly  regarded  as  American  citizens.  But 
if  there  be  such  a  law,  or  if  on  attaining  majority  they  remain  in  Mexico 
and  come  within  any  provision  of  Mexican  hnv  making  them  citizens  of 
that  Republic,  they  could  not  be  regarded  as  citizens  of  the  United 
States. 

"  The  registration  of  the  younger  son,  by  the  widowed  mother,  after 
the  death  of  the  father,  although  irregularly  and  unnecessarily  delayed, 
is  in  contravention  of  no  rule,  the  child's  citizenshii)  «fZ;/r//i  being  clear." 

Mr.  F.  W.  Seward,  Acting  Sec,  of  State,  to  Mr.  P'oster,  Aug.  1:5,  ld79.    MSS.  lust., 
Mes.;  For.  Kel.,  1«79. 

A  boy  of  eighteen  years,  who  has  never  been  out  of  Germany,  but 
whose  father  is  a  naturalized  citizen  of  and  resident  in  the  United  States, 
is  not  entitled  to  obtain  the  interposition  of  this  Government  to  secure 
him  from  military  service  in  Germany,  or  to  relieve  him  from  being  de- 
tained in  Germany  for  that  purpose. 

Uv.  Evarts,  Sec.  of  State,  to  Mr.  Caldwell,  Mar.G,  1880.     MSS.  Doin.  Let. 

The  son,  living  in  Spain,  of  a  naturalized  citizen  of  the  United  States, 
cannot  consistently  with  the  law  of  nations,  be  required  in  that  country 
"  vicariously"  to  perform  his  father's  military  duties. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.Faircbild,  May  11,  1880,     MSS.  Inst,,  Spain. 

Section  2172  of  the  Revised  Statutes  is  regarded  •'  as  applicable  to 
such  children  as  were  actually  residing  in  the  United  States  at  the  time 
of  their  father's  naturalization,  and  to  minor  children  who  come  to  the 
United  States  during  their  minority  and  while  the  parents  were  residing 
here  in  the  character  of  citizens." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Kasson,  Mar.  31,  1831.     MSS.  Inst.,  Austria; 
For.  Eel.,  1881. 

"The  provision  of  the  act  of  the  14th  of  April,  1802  (section  2172,  Re- 
vised Statutes  of  the  United  States),  has  received  both  executive  and 
judicial  construction.  The  Attorney  General  of  the  United  States 
(Bates),  in  1802,  held  that  'under  the  4th  section  of  the  act  of  April, 
1802,  to  establish  a  uniform  rule  of  naturalization,  &c.,  such  children,  if 
dwelling  in  the  United  States,  are  declared  citizens.'  '  That  section,' 
continues  the  Attorney-General,  'provides  in  brief  that  the  children  of 
persons  duly  naturalized  under  any  of  the  laws  of  the  United  States, 
40G 


CHAP.  Til.]  CIIILDEEN.  [§  184. 

etc.,  being  under  the  age  of  twenty-one  years  at  the  time  of  their 
parents  being  so  naturalized  or  admitted  to  the  rights  of  citizenship, 
shall,  if  dwelling  in  the  United  States,  be  considered  as  citizens  of  the 
United  States. 

"  'The  section  of  course  refers  tochildren  born  outof  the  United  States, 
since  the  children  of  such  persons  born  within  the  United  States,  are 
citizens  without  the  aid  of  statutory  law.'     (10  Up.,  329.)" 

Mr.  Davis,  Acting  Sec.  of  State,  to  Mr.  Brulatour,  July  30,1883.     MSS.  Inst., 
France. 

"  There  are  but  three  methods  known  to  me  for  obtaining  the  rights 
of  an  American  citizen.     Those  entitled  to  such  rights  are : 

"  (1)  Children  born  in  the  United  States,  and  subject  to  thejurisdic- 
tiou  thereof. 

"  (2)  Children  born  of  American  parents  whose  fathers  have  resided 
within  the  United  States ;  and, 

"  (3)  Those  embraced  by  the  naturalization  law,  which  would  include 
those  naturalized  and  their  children  minors  at  the  time  of  naturaliza- 
tion, if  within  the  jurisdiction  of  this  country. 

"I  cannotseethat  thischild  born  abroad  presumably  of  foreign  parents 
is  by  the  act  of  adoption  under  a  State  law  brought  Avithin  either  of 
these  provisions  prescribing  United  States  citizenship." 

Mr.  Frelingbuyseu,  Sec.  of  State,  to  Mr.  Willis,  Feb.  21,  1884.    MSS.  Dom.  Let. 

"  Your  dispatch,  No.  124,  of  the  6th  ultimo,  reports  the  correspondence 
had  by  you  with  the  foreign  office  in  the  case  of  Ferdinand  Eevermann, 
a  citizen  of  the  United  States  by  birth,  lately  expelled  from  Ger- 
many. The  decision  of  the  German  Government,  as  communicated  by 
you,  broadly  covers  the  questions  of  the  treaty  rights  of  naturalized 
Germans  returning  to  Germany,  and  of  their  sons  born  American  cit- 
izens. 

"  The  same  general  questions  Lave  been  recently  examined,  and  the 
views  of  this  Department  communicated  fully  by  instructions  IS'o.  83  of 
the  15th  ultimo,  and  Jfo.  84  of  the  same  date. 

"  Lest  silence  should  be  construed  as  acquiescence  in  the  position 
now  taken  by  Germany,  it  seems  proper  to  put  on  record  some  ob- 
servations touching  it.  For  this  purpose  it  does  not  seem  necessary 
to  recite  and  discuss  the  particular  case  of  Eevermann;  it  will  suffice 
to  merely  notice  certain  points  of  Dr.  von  Busch's  note  of  December 
31,  1884. 

"  That  note  professes  only  to  deal  with  the  case  of  the  sons  of  nat- 
uralized and  returning  fathers.     But  it  lays  down  the  following  rule: 

'"As  regards  the  fath«ir  of  such  sons,  no  doubt  can  exist  that  they  are 
to  be  regarded  as  having  renounced  their  naturalization  by  a  longer 
sojourn  than  one  or  two  years  pursuant  to  the  treaties  reguhiting  na- 
tionality of  18G8  concluded  with  tlic  United  States.' 

407 


§  184.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [cnAP.  VIT. 

"  ]My  instruction  to  yon,  No.  84,  of  tlie  IStli  nltinio,  deals  witli  tliis 
question. 

"We  tbiuk  it  clear  that  the  treaty  cannot  of  itself  convert  an  Amer- 
ican citizen  back  again  to  a  German,  any  more  than  it  can  make  a  Ger- 
man a  citizen  of  the  United  States. 

*'  There  are,  it  is  believed,  many  persons  now  in  Germany  whose  so- 
journ has  extended  beyond  the  term  of  two  years  without  their  being 
called  ui)ou  to  resume  German  allegiance.  In  all  their  relationships 
to  this  Government  they  retain  American  citizenship.  There  is  be- 
tween them  and  the  authorities  of  their  place  of  sojourn  no  relation- 
ship, implying  resumption  of  their  original  status,  and  no  jurisdic- 
tional rights  are  exercised  over  them. 

"As  to  the  sous  of  such  fathers,  who,  being  citizens  by  birth,  may 
visit  the  land  of  their  father's  allegiance,  the  decision  of  the  German 
Gavernment  is  just.  They  are  original  citizens  in  their  own  right,  and 
the  treaty  does  not  relate  to  them.  In  all  respects  they  stand  on  the 
same  footing  as  native  Americans  of  American  parentage.  This  being 
so,  the  contention  of  the  German  Government,  that  such  sons  may  Im3 
expelled  from  Germany  on  abrupt  notice,  at  the  jileasure  of  the  au- 
thorities, under  the  alternative  of  becoming  German  subjects,  is  tanta- 
mount to  claiming  the  right  to  expel  any  citizen  of  the  United  States 
in  like  manner  and  with  the  like  alternative,  which,  of  course,  would 
conflict  with  the  provisions  of  the  existing  treaty. 

"  Such  sons  are  admittedly  and  rightfully  not  within  the  provi^ions  of 
the  naturalization  treaty  of  1808.  Then,  as  American  citizens  by  native 
right,  they  must  come  under  the  general  provisions  of  treaty  affecting 
all  American  citizens  who  have  not  been  naturalized. 

"  This  Government  does  not  suppose  that  it  will  be  called  upon  to  ac- 
quiesce in  the  arbitrary  establishment  of  a  class  of  citizens  who  have 
no  rights  under  either  treaty,  but  who  may  any  day  be  called  upon  to 
instantlly  become  naturalized  as  German  subjects  or  hastily  expelled 
from  the  country,  without  time  for  preparation. 

"  Dr.  von  Busch's  claim  that  'international  principles  permit  the  re- 
fusal to  such  persons  of  sojourn  in  Germany,'  in  the  interest  of  public 
order,  'when  the  actual  circumstances  indicate  that  the  persons  in 
question  use  their  American  citizenship  only  for  the  purpose  of  with- 
drawing themselves  from  the  duties,  and,  in  particular,  from  the  mili- 
tary duty  devolving  upon  the  domestic  population,  without  being 
disposed  to  abandon  their  permanent  sojourn  in  Germany  and  the 
advantages  connected  therewith,'  is  not  fully  understood  by  me; 
and  perhai)s  its  objectionable  character  may  disappear  on  further  ex- 
l)lanation;  but  so  far  as  I  understand  it,  I  cannot  see  why  this  lino  of 
argument  does  not  apply  to  any  and  every  native  born  American  citizen 
of  military  age  who,  for  purposes  of  business,  study,  or  pleasure,  may 
take  up  a  peaceable  abode  in  Germany,  whether  he  has  relatives  in 
that  country  or  not. 
408 


CITAP.  VII.]  CHILDREN.  [§  184. 

"  The  singular  character  of  Dr.  von  Busch's  contention,  and  the  re- 
markable consequences  which  might,  if  it  were  admitted,  How  therefrom, 
make  it  advisable  that  its  true  purport  should  be  better  understood 
before  instructing  you  more  definitely  in  the  case  of  Ferdinand  Rever- 
mann. 

"  You  will  therefore  take  an  early  occasion  to  point  out  the  contra- 
dictions involved  in  the  German  reply,  and  the  difficulty  we  would  find 
in  acquiescing  therein." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Kasson,  Feb.  7,  1885.     MSS.  Inst., 

Germ. ;  For.  Eel.,  1885. 
As  to  expulsions,  see  infra,  $  206. 

Under  ordinary  circumstances  the  status  of  a  son  born  in  the  United 
States  to  a  German  naturalized  in  the  United  States  would  follow  that 
of  his  father  when  his  father  returns  with  the  infant  child  to  Germany 
from  the  United  States  and  resumes  a  German  nationality.  But  it  is 
otherwise  when  the  father's  resumption  of  German  nationality  by  its 
own  terms  excludes  from  its  purview  the  case  of  his  son.  "  The  doc- 
trine of  the  changing  of  an  infant's  nationality  with  the  nationality  and 
domicil  of  the  father  rests  on  the  assumption  that  such  is  the  fiither's 
will  and  that  the  change  is  in  submission  to  his  paternal  power.  When, 
as  in  the  present  case,  the  father's  will  is  that  the  child  should  retain 
his  prior  nationality  and  domicil,  then  the  father's  change  of  nationality 
and  domicil  does  not  affect  the  child." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Pendleton,  May  12,  1885.     MSS.  Inst.,  Germ. 

Under  section  2172  of  the  Revised  Statutes  a  child  of  a  naturalized 
citizen  of  the  United  States,  in  order  to  become  liimself  a  citizen  of  the 
United  States,  must  dwell  therein. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cramer,  May  22,  1885.     MSS.  Inst.,  Switz. 
To  same  effect  see  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cole,  Nov.  9,  1885;  MSS. 

Dom.  Let. ;  Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Portal,  June  10,  188G. 

MSS.  Dom.  Let. 

"With  reference  to  your  dispatch  No.  27,  of  the  17th  ultimo,  in  rela- 
tion to  the  case  of  Mr.  Charles  Drevet,  I  have  to  inform  you  that  the 
Department  has  had  the  matter  under  consideration. 

"  It  appears  from  your  communication  that  ]\Ir.  Charles  Drevet  was 
born  September  28,  18G4,  at  Paris,  in  which  city  he  has  ever  since  re- 
sided. His  father,  Leon  Drevet,  a  Frenchman,  came  to  the  United  States 
in  1852.  In  July,  1858,  he  made  his  declaration  of  intention ;  in  Feb- 
ruary, 1859,  he  married  an  American  lady ;  in  18G0  he  went  back  to 
France;  in  1809  he  returned  to  America;  in  the  same  year  (June  3, 
18G9)  he  took  out  his  second  papers,  and  shortly  after  resumed  his  resi- 
dence in  France,  where  he  has  ever  since  remained.  The  son  has  always 
lived  in  France;  the  father  has  been  domiciled  there  for  many  j'ears; 
neither  the  son  nor  the  father  has  expressed  any  intention  of  residing 
in  this  country  at  any  time  in  the  future. 

409 


§  184.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VIL 

•'  Under  these  eireuiiistances  Mr.  Charles  Brevet  bas  asked  your  lega- 
tion to  liiriiish  him  M'ith  a  certilicate  required  by  the  French  law  of 
December  IG,  1874,  to  the  eflect  that  he  is  cousidonHl  by  this  Govern- 
ment to  be  an  American  citizen. 

"  The  Department  holds,  under  section  2172  of  the  Kevised  Statutes, 
that  as  Mr.  Charles  Drevet  was  not  at  the  time  of  the  naturalization  of 
his  father  dwelling::  in  the  United  States;  that  as  he  has  never  resided 
in  this  countiy,  and  never  intends  to  do  so,  he  cannot  be  considered  to 
be  an  American  citizen.  You  will,  therefore,  decline  to  issue  a  passport 
to  him  as  such,  that  being  the  only  attestation  of  nationality  which 
could  have  been  granted  by  your  legation  in  case  the  facts  should  have 
shown  him  to  be  an  American  citizen." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  McLane,  July  4,  1885.  MSS.  Inst.,  France; 
For.  liel.,  1885.  Sec  Mr.  Bayard  to  Mr.  Pendleton,  July  7,  1885,  quoted 
infra,  $  20G. 

"  Your  dispatch  Xo.  229,  of  the  Sth  instant,  referring  to  the  passport 
application  of  Eobert  Eraden,  has  been  received.  This  seems  to  be  the 
same  case  as  the  one  referred  to  in  your  Xo.  203,  of  the  IGth  of  February 
last,  which  was  fully  disposed  of  in  instruction  No.  130,  of  the  10(h  of 
March  last,  approving  your  letter  to  Mr.  M.  P.  Emden,  of  the  11th  Feb- 
ruary last.  In  that  dispatch  the  name  of  Mr.  M.  P.  Emden's  eldest  son 
was  not  given,  but  it  is  supposed  that  the  Robert  Emden  in  your  No. 
229  is  the  eldest  son  previously  alluded  to.  This  Department  sees  no 
reason  to  change  its  former  decision,  as  convej'ed  in  instruction  No. 
130,  that  the  passport  application  of  Mr.  Robert  Emden,  although  he 
is  the  son  of  naturalized  American,  cannot  be  granted,  because  he  is 
not  and  never  has  been  '  dwelling  in  the  United  States,'  according  to 
section  2171  of  the  Revised  Statutes,  which  phrase  it  is  noticed  is  care- 
fully omitted  from  the  version  of  the  statute  given  in  Mr.  Robert  Em- 
den's letter  of  the  15th  of  Ajiril  last  to  you,  if  the  copy  of  it  inclosed  in 
your  No.  229  is  correct." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cramer,  June  27, 1885.  MSS.  Inst.,  Switz.; 
For.  Rel.,  1835.     See,  as  to  George's  case,  infra,  $  206. 

Robert  Emden  was  born  in  Switzerland  in  1SG2,  and  at  the  time  of 
his  application  in  1SS5  for  a  passport,  had  never  been  in  the  United 
States.  Ilis  father,  a  Swiss  by  origin,  was  naturalized  in  New  York  in 
1854,  but  soon  afterwards  returned  to  Switzerland,  where  he  continued 
afterwards  to  reside. 

"Undoubtedly,  by  the  law  of  nations,  an  infant  child  i)artakes  of  his 
father's  nationality  and  domicile.  But  there  are  two  difiQculties  in  the 
way  of  ai)i)lying  this  rule  to  the  present  case.  In  the  first  place  a  pa- 
rent's nationality  cannot,  especially  when  produced  by  naturalization, 
be  i)resnmed  to  be  adhered  to  after  a  residence  in  the  country  of  origin 

410 


CHAP.  YII.]  CHILDREN.  [§  184. 

for  SO  loug  a  period  as  in  the  present  case.  In  the  second  place,  the 
rule  as  to  cliildreu  only  applies  to  minors,  since  when  the  cliild  becomes 
of  age  be  is  required  to  elect  between  the  country  of  his  residence  and 
the  country  of  his  alleged  technical  allegiance.  Of  this  election  two 
incidents  are  to  be  observed ;  when  once  made  it  is  final;  and  it  requires 
no  formal  act,  but  may  be  inferred  from  the  conduct  of  the  party  from 
whom  the  election  is  required. 

"Applying  these  tests  to  the  present  case  it  can  hardly  be  said  that 
Mr.  Eobert  Emden's  claim  to  be  a  citizen  of  the  United  States  is,  as  a 
matter  of  international  law,  made  out.  The  burden  of  proof  is  always 
on  the  applicant  for  the  passport,  and  here  there  is  no  evidence  to  prove 
either  his  father's  non-abandonment  of  his  United  States  citizenship 
or  his  own  election  of  such  citizenship,  save  the  applications  of  father 
and  son  for  passports. 

"  In  the  foregoing  remarks  the  sections  of  the  Eevised  Statutes  bear- 
ing on  questions  of  this  class  have  not  been  considered.  These  sections 
are  as  follows : 

'"Sec.  2172  [originally  enacted  April  14,  1802],  The  children  of  per- 
sons who  have  been  duly  naturalized  under  any  law  of  the  United  States, 
or  who,  previous  to  the  passing  of  any  law  on  that  subject  by  the  Gov- 
ernment of  the  United  States,  may  have  become  citizens  of  any  one  of 
the  States,  being  under  the  age  of  twenty- one  years  at  the  time  of  the 
naturalization  of  their  parents,  shall,  if  dwelling  in  the  United  States, 
be  considered  as  citizens  thereof;  and  the  children  of  persons  who  now 
are  or  have  been,  citizens  of  the  United  States,  shall,  though  born  out 
of  the  limits  and  jurisdiction  of  the  United  States,  be  considered  as  cit- 
izens thereof.    *    *    * 

"  '  Sec.  1993  [originally  passed  April  9, 1866].  All  children  heretofore 
born  or  hereafter  born  out  of  the  limits  and  jurisdiction  of  the  United 
States,  whose  fathers  were  or  may  be  at  the  time  of  their  birth  citizens 
thereof,  are  declared  to  be  citizens  of  the  United  States;  but  the  rights 
of  citizenship  shall  not  descend  to  children  whose  fathers  never  resided 
in  the  United  States.' 

'•If  reliance  is  i»laced  on  the  first  clause  of  section  2172,  the  applica- 
tion must  fail,  since  that  clause  ai)j)lies  only  to  children  'dwelling  in  the 
United  States.'  If,  however,  Mr.  Emdcn  seeks  to  come  in  under  the 
second  clause  of  section  2172,  or  under  the  more  general  terms  of  sec- 
tion 1993,  he  is  met  with  tbe  difliculty  that  he  is  no  longer  a  '  child,' 
but  that  he  is  of  full  age,  and  that  his  citizenship  is  no  longer  deriva- 
tive, but  is  a  matter  of  personal  election.  If  he  solemnly  elected,  on 
arriving  at  full  age,  to  be  a  citizen  of  the  United  States,  the  ])roofs  of 
such  election  must  be  produced.  If,  on  the  other  hand,  he  made  no  such 
election,  but  by  remaining  in  Switzerland  is  to  be  inferred  to  have  ac- 
cepted Swiss  nationality,  he  cannot  now  obtain  a  jtassport  as  n  <'i(i/«'n 
of  the  United  Stat<'S.     If  this  be.  tlu',  case  his  ])r()per  course,  sliould  he 

411 


§184.]     CITIZENSHIP,  NATURAf.IZATIOX,  AXD  ALIENAGE.    [ciIAP.  VII. 

desire  to  become  a  citizen  of  tlie  Unitei'.  States,  is  to  come  bere  in  per- 
son ami  become  naturalized." 

Mr.  Porter,  Acting?  Sec.  of  State,  to  Mr.  Winchester,  Sept.  14,  1685.     MSS.  Inst., 
Switz. ;  For.  Eel.,  1885. 

Under  the  act  of  1S02  (2  Stat.  L.,  153,  Eev.  Stat.,  §  2172),  a  minor 
child  of  a  father  so  naturalized  became  a  citizen,  though  not  then 
within  the  United  States,  provided  she  was  resident  therein  at  the 
time  of  the  passage  of  the  act. 

Campbell  v.  Gordon,  G  Crancli,  176. 

Children  born  abroad  of  aliens  who  subsequently  emigrated  to  this 
country  with  their  families,  and  were  naturalized  here  during  the  mi- 
nority of  their  children,  are  citizens  of  the  United  States. 
10  Op.,  329,  Bates,  letiii. 

A  Prussian  subject  by  birth  emigrated  to  the  United  States  in  1848, 
became  naturalized  in  1854,  and  shortly  afterwards  returned  to  Ger- 
many with  his  family,  in  which  was  a  son  born  in  the  United  States, 
and  became  domiciled  at  Wiesbaden,  where,  together  with  his  famil^^, 
he  has  since  continuously  resided.  The  son  having  reached  the  age  of 
twenty  years,  has  been  called  upon  by  the  German  Government  for 
military  duty.  The  father  invoked  the  intervention  of  the  United  States 
legation  at  Berlin,  but  declined  in  behalf  of  the  son  to  give  any  assur- 
ance of  intention  on  the  part  of  the  latter  to  return  to  the  United  States 
within  a  reasonable  time  and  assume  his  duties  as  a  citizen. 

Article  IV  of  the  naturalization  treaty  between  the  United  States 
and  North  Germany  of  18GS  reads  as  follows :  "  If  a  German  naturalized 
in  America  renews  his  residence  in  Korth  Germany  without  the  intent 
to  return  to  America,  he  shall  be  held  to  have  renounced  his  naturaliza- 
tion in  the  United  States.  *  *  *  The  intent  not  to  return  may  be 
held  to  exist  when  the  person  naturalized  iu  the  one  country  resides 
more  than  two  years  in  the  other  country." 

It  was  held  (1)  that  under  the  above  article,  the  father  must  be  deemed 
to  have  abandoned  his  American  citizenship  and  to  have  resumed  the 
German  nationality ;  (2)  that  the  son,  being  a  minor,  acquired  under  the 
laws  of  Germany  the  nationality  of  his  father,  but  did  not  thereby  lose 
his  American  nationality;  (3)  that  upon  attaining  his  mnjority,  the  son 
may,  at  his  own  election,  return  and  take  the  nationality  of  his  birth  or 
remain  in  Germany  and  retain  his  acquired  nationality;  (4)  yet  that  dur- 
ing his  minority  and  while  domiciled  with  his  father  in  Germany,  he 
cannot  rightfully  claim  exemption  from  military  duty  there. 

15  Op.,  1,'),  Pierrepont,  1875. 

A  Spanish  sulyect  by  birth  was  naturalized  in  the  United  States  in 

February,  187G,  and  thereupon  his  son,  aged  twenty,  who  was  born  iu 

the  Island  of  Cuba,  applied  to  the  State  Department  for  a  passport, 

stating  that  he  had  resided  in  the  United  States  for  five  years,  but  that 

412 


CHAP.  VIl]  CHILDREN.  [§  185. 

it  was  bis  intention  to  resume  Lis  residence  in  the  Spanish  dominions 
and  engage  in  business  there.  It  was  held  that  the  sou,  being  a  minor 
at  the  time  of  his  father's  naturalization,  must  be  considered  a  citizen 
of  the  United  States  within  the  meaning  of  section  2172,  Revised  Stat- 
utes, and  as  such  entitled  to  a  passport,  aud  that  the  circumstance  that 
he  intended  to  reside  in  the  country  of  his  birth  did  not  make  him  less 
entitled  than  if  his  destination  were  elsewhere. 

15  Op.,  114,  Taft,  187G. 

(3)   So   OF   CIIILDREX   BORX   ARROAD  TO   CITIZENS   OF   THE   UXITED   STATES. 

§185. 

"All  children  heretofore  born  or  hereafter  born  out  of  the  limits  and 
jurisdiction  of  the  United  States,  whose  fathers  were  or  may  be  at  the 
time  of  their  birth  citizens  thereof,  are  declared  to  be  citizens  of  the 
United  States,  but  the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the  United  States." 

Rev.  Stat.  $  1993,  fouuded  on  acts  of  April  14, 1802,  chap.  28,  H,  2  Stat.  L.,  155, 
and  Feb.  10, 1855;  chap.  71,  §  1, 10  Stat.  L.,  604.     See  supra,  §  171. 

"  It  is  provided  by  law  that  '  all  children  born  or  hereafter  born  out 
of  the  limits  and  jurisdiction  of  the  United  States,  whose  fathers  were 
or  may  be  at  the  time  of  their  birth  citizens  thereof,  are  to  be  declared 
to  be  citizens  of  the  United  States  ;  but  the  rights  of  citizenship  shall 
not  descend  to  children  whose  fathers  never  lesided  in  the  United  States.' 
That  the  citizenship  of  the  father  descends  to  the  children  born  to  him 
when  abroad,  is  a  generally  acknowledged  principle  of  international 
law." 

Printed  Peis.  lust.  Dip.  Agents,  1885. 

"  If,  by  the  laws  of  the  country  of  their  birth,  children  of  American 
citizens,  born  in  such  country,  are  subjects  of  its  Government,  the  leg- 
islation of  the  United  States  should  not  be  construed  so  as  to  interfere 
with  the  allegiance  which  they  owe  to  the  country  of  their  birth  while 
they  continue  within  its  territory,  or  until  they  shall  have  relieved 
themselvesof  that  allegiance  aud  have  assumed  their  rightsof  American 
citizenship  in  conformity  with  the  laws  and  Constitution  of  the  country, 
and  have  brought  themselves  personally  within  its  jurisdiction." 

"lieferring  to  Mr.  Brulatour's  dispatch  No.  382,  of  the  1st  of  August 
last,  in  regard  to  the  application  of  Mr.  Eugene  Albert  Verdelet  for  a 
certificate  or  attestation  from  this  Government  that  he,  the  ai)])licant, 
has  maintained  his  American  nationality  up  to  the  present  time,  1  have 
now  to  state  that  the  question  has  been  carefully  considered.  The  ma- 
terial facts  upon  which  the  api)lication  is  based  appear  to  be  that  Ver- 
delet jpere,  the  father  of  Eugene  Albert,  was  born  in  France,  resided  in 
this  country  thirty-five  years,  and  in  1853  became  a  citizen  of  the  United 
States  by  naturalization.  In  1851)  he  returned  to  his  native  country, 
and  continued  to  resid<'.  there,  until  his  <lealh,  which  occurred  in  1874. 
Ill  18G2  Eugene  Albeit,  the  picsent  a|)plicant,  was  boiii  at  Bordeaux, 

413 


§185.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VII. 

France.  He  has  always  resided  in  France,  lias  never  been  in  the  United 
States,  and  expresses  no  intention  of  ever  coming  here  to  reside,  al- 
though, he  says,  property  interests  may  render  it  necessary  for  him  to 
visit  the  United  States  at  some  future  time. 

"A  passport  is  the  usual  form  in  wliich  this  Government  attests  tlio 
nationalitj'  of  citizens  of  the  United  States  to  a  foreign  Government. 
Under  the  circumstances  of  JNIr.  Verdelet's  case  it  is  considered  that  he 
is  not  entitled  to  a  passport,  and  consequently  that  he  cannot  justly 
claim  a  certificate  in  any  other  form  attesting  the  fact  that  he  has  main- 
tained American  nationality." 

Mr.   FreliuglinyscEi,  Sec.  of  State,  to   Mr.  Morton,  Nov.  9,  1883.     MSS.  lust., 
France;  For.  Eel.,  1883.     Sco  su])ra,  ^  171. 

"Your  dispatch,  No.  94,  of  the  Gth  ultimo,  reports  your  action  in  re- 
gard to  the  application  of  Mr.  Karl  Klingenmeyer  for  a  passport. 
While  the  Dei)artment  concnrs  with  you  in  thinking  that  a  passport 
should  be  withheld  for  the  present,  at  least  so  far  as  the  issuance  by 
your  legation  is  concerned,  because  of  the  doubt  raised  as  to  the  good 
faith  of  the  applicant  by  the  circumstance  of  his  having  already  ob- 
tained a  ])assport  frcm  your  predecessor  on  the  false  i)retense  of  birth 
in  the  United  States  of  America,  the  views  you  hold  as  to  the  actual 
status  of  the  party  on  the  facts  submitted  seem  to  require  some  modi- 
fication. 

"  The  facts  are  briefly  that  Mr.  Karl  Klingenmeyer's  father  having  been 
naturalized  in  the  United  States  of  America  (but  when  or  where  does  not 
a])i)e?.r),  returned  to  Germany,  where  he  resided  in  18G0  and  until  his 
death  in  1881,  without  having  evinced  any  intent  to  return  to  this  coun- 
try. Karl,  the  son,  was  born  in  Wiirtemberg  in  the  year  18G2 ;  has  not 
been  in  the  United  States  ;  has  no  intention  of  residing  here,  but  desires 
a  certificate  of  American  citizenship  as  a  formality  towards  his  intended 
marriage.  This  you  refuse  '  by  reason  of  his  father's  renunciation  of 
American  citizenship  (Article  IV  of  the  treaty  of  18G8),com.biucd  with 
his  own  German  birth  and  free  choice  of  German  residence  without  in- 
tention of  going  to  the  United  States.' 

"It  does  not  appear  whether  the  father  returned  from  America  to 
AViirtemberg,  his  native  state,  although  the  fact  that  the  son  was  there 
born  would  seem  to  indicate  that  he  did.  This  point,  however,  is  not 
now  of  importance,  and  may  be  ])assed  over. 

"The  precise  date  of  the  Aither's  return  to  Germany  in  the  year  18G0 
is  not  given,  but  it  may  be  assumed  that  the  son's  birth  on  the  14th  of 
February,  18G2,  occurred  within  the  period  of  two  years  prescribed  by 
the  several  naturalization  treaties  with  Korth  Germany. 

"But  that  point  also  is  unimportant,  in  view  of  the  fact  that  under 

these  treaties,  a  two  years'  residence  in  his  native  country  of  a  citizen 

naturalized  in  the  United  States  of  America  does  not  of  itself  divest  hira 

of  his  adopted  citizenship.    The  treaties  provide  that  when  a  citizen  of 

414 


CHAP,  yil.]  CHILDREX.  [§  185. 

either  country  naturalized  in  the  other  shall  renew  his  residence  in  tlie 
country  of  his  birth  without  the  intent  to  return  to  his  adopted  country, 
he  shall  beheld  to  have  renounced  his  naturalization,  and  further  that 
the  intent  not  to  return  '  may  be  held  to  exist'  after  the  residence  in  the 
native  country  shall  exceed  two  years.  The  residence,  therefore,  is 
only  evidence  open  to  rebuttal  of  lack  of  intention  to  return  to  the 
adopted  country'.  The  treaty,  therefore,  by  itself  does  not  work  for- 
feiture of  citizenshii),  and  in  this  case  some  affirmative  governmental 
act  was  necessary  to  show  that  the  elder  Klingenmeyer  had,  through 
residence  in  Germany  without  intent  to  return  here,  forfeited  his  natu- 
ralization. 

"This  is  the  construction  of  the  fourth  article  of  the  treaty  of  18G8 
which  has  been  maintained  by  this  Department,  and,  so  far  as  is  known, 
admitted  by  the  German  Government.  That  the  article  does  not  of 
itself  operate  to  make  the  returning  individual  a  German  subject  is  es- 
tablished by  jorecedents  on  file  in  your  legation. 

"The  party  affected  is  in  some  instances  required,  after  the  expiration 
of  the  two  years'  residence,  to  affirmativ^ely  resume  his  previous  allegi- 
ance, under  the  alternative  of  quitting  the  country,  thus  forcing  him  to 
elect  between  the  two  citizenships.  Of  course,  if  he  quits  the  country 
he  retains  his  adopted  citizenship,  unimpaired  by  the  fact  that  he  has 
exceeded  the  two  years'  limitation. 

"If  the  father  of  Mr.  Karl  Klingenmeyer  did  in  fact  renounce  his 
American  citizenship  and  resume  his  original  allegiance,  in  a  manner 
recognized  by  the  laws  of  his  native  country,  that  fact  would  operate 
as  a  renunciation  of  the  adopted  citizenship  for  his  minor  children,' at 
least  while  they  remain  within  the  jurisdiction  which  their  father  re- 
acknowledged. 

"The  first  point  to  be  decided,  then,  is  w'hether,  as  a  fact,  the  father, 
during  the  son's  minority,  ceased  to  be  an  American  citizen,  and  in  de- 
ciding that  the  treaty  clause  should  be  construed  as  hereinbefore  set 
forth.  If  the  father  did  not  so  cease  the  case -is  plain,  and  the  sou  is 
an  American  citizen,  unless  since  reaching  the  age  of  twenty-one  years 
he  has  himself  forfeited  his  rights. 

"We  now  reach  a  point  less  easy  of  decision,  and  that  is,  assuming 
that  the  father  resumed  German  citizenship  during  the  son's  minority, 
what  are  the  son's  rights  as  against  this  Government  upon  reaching  the 
age  of  twenty -one  years,  for  there  is  no  doubt  that  during  minority  his 
rights,  if  he  had  any  other  than  those  possessed  by  his  father,  were  at 
least  suspended  and  subject  to  the  father's  allegiance. 

"The  statute  of  the  United  States  (Revised  Statutes,  section  1993)  de- 
clares that  all  children  born  without  the  United  States  whose  fathers 
'  were  or  n)ay  be  at  the  time  of  their  birth  citizens  thereof,'  are  them- 
selves citizens  of  the  United  States,  but  that  right  'shall  not  descend 
to  children  whose  fathers  never  resided  in  the  United  States.' 

415 


§185.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  VH. 

"Therefore  if  Mr.  Karl  Klingenmeyer's  fiither  was  at  the  tiuie  of  Lis 
sou's  birth  a  citizen  of  this  country,  the  sou  was  such  a  citizeu,  while 
possibly  by  the  Germau  law  (which  I  have  not  at  hand)  he  might  also 
be  a  citizeu  of  the  place  of  his  birth.  On  general  i)rinciples  such  con- 
flicting citizenship  is  decided  according  to  the  laws  of  the  one  of  the  two 
countries  claiming  allegiance  within  whose  jurisdiction  the  individual 
happens  to  be.     (13  Op.,  89.) 

"The  following  facts  may  be  considered  as  established  in  this  case: 

"  (1)  That  the  elder  Klingeumeyer,  the  father  of  the  present  applicant, 
]\rr.  Karl  Klingeumeyer,  came  to  the  United  States  of  America  and  was 
naturalized  here  some  time  before  the  year  ISGO. 

"  (2)  That  the  father  returned  to  Germany  some  time  in  that  year  (18G0) 
with  the  avowed  intention  of  remaining  permanently  in  that  country, 
and  of  never  returning  to  the  United  States  of  America  with  a  view  to 
residing  i^ermanentlj'  in  this  country. 

"  (3)  That  the  elder  Klingeumeyer  adhered  to  the  intention  thus  mani- 
fested by  remaining  in  the  country  of  his  origin,  and  that  of  his  primi- 
tive allegiance.  Sot  more  than  twenty  years,  and  up  to  the  time  of  his 
death  in  the  year  1881.  This  must  be  taken  in  reason  as  well  as  in 
law  to  be  a  renunciation  of  his  adopted  citizenship.  No  matter  to  what 
country  he  may  have  gone,  there  can  be  no  stronger,  no  clearer  mani- 
festation of  intent  against  the  animus  rcvcrtendi  than  a  man's  own  dec- 
laration followed  bj'  the  establishment  of  a  permaueut  domicil  in  the 
new  country  of  his  choice,  and  the  entry  into  business  there,  and  re- 
maiuiug  in  that  newly-chosen  country  until  his  death,  over  twenty-one 
years  later.  It  is  also  a  resumption  of  his  original  nationality  and  native 
allegiance.  That  is  a  question  in  regard  to  which  either  the  United 
States  or  Germany  may  insist  upou  its  own  view  of,  as  it  may  be  held 
respectively  by  either  Government. 

"  It  is  not  materially  essential  to  the  determination  of  the  present  ques- 
tion, but  as  is  stated  by  Attorney-General  Iloar  in  the  case  cited  above 
(13  Op.,  90),  is  usually  determined  by  the  country,  claiming  afiQrma- 
tively,  when  the  man  is  found  within  that  jurisdiction. 

"  (4)  That  Mr.  Karl  Klingeumeyer  was  born  in  AA'iirtemberg,  Germany, 
on  the  14th  day  of  February,  1862,  which  event  was  after  the  date  of 
the  father's  return  to  Germany  and  his  father's  renunciation  of  his  ac- 
quired United  States  citizenship. 

"(5)  That  Mr.  Karl  Klingeumeyer  never  resided  in  the  United  States} 
in  fact  never  was  in  this  country. 

"(G)  That  he  now  iiublicly  disclaims  any  intention  of  ever  coming  to 
the  United  States  to  jeside;  and  also,  in  any  equally  public  manner 
avows  his  intention  of  permanently  residing  in  Germany,  adding  that 
be  desires  an  American  i)assi)ort  solely  for  the  ])uri)osc  of  facilitating 
his  matrimonial  plans  and  arrangements. 

"Now,  suppose  that  this  young  man  had  obtained  through  his  father's 
acquired  American  nationality  auy  inchoate  rights  or  claim  to  Uuited 
41G 


CHAP.   VII.]  CHILDREN.  [§  185. 

States  citizenship,  aud  that  these,  on  account  of  his  fathers  voluntary 
foreign  residence,  and  his  loss  of  American  citizenship,  were  held  in 
abeyance  dnring  the  son  Karl's  residence  with  his  father  there,  reserv- 
ing to  him,  Karl  Klingenmeyer,  the  right  of  choosing  for  himself,  when 
he  should  have  attained  the  age  of  twenty-one  years,  which  country 
he  would  adhere  to.  This  reserved  privilege  in  his  favor  is  always 
accompanied  by  the  implied  condition  that  he  shall  make  and  in  some 
formal  manner,  not  always  prescribed,  but  nevertheless  well  under- 
stood, avow  his  election  within  a  reasonable  time  after  he  attains  ma- 
jority. 

"Applying  these  just  and  reasonable  requirements  to  the  case  of  Mr. 
Karl  Klingenmeyer,  how  has  he  fulfilled  them  ?  He  is  now  nearly 
twenty-three  years  old ;  he  had  not,  until  the  filing  of  his  application 
for  a  United  States  passport,  even  so  much  as  claimed  American  citi- 
zenship, aud  he  does  so  now,  accompanied  by  the  open  avowal  that  he 
never  intends  to  make  the  United  States  his  home,  his  residence,  or  his 
country,  except  to  demand  technical  citizenship  in  so  far  as  that  may 
serve  his  convenience  and  subserve  his  personal  interest.  He  ueither 
bears  nor  ackuovrledges  any  obligation  to  share  with  the  American  citi- 
zens any  of  the  burdens  incident  to  the  character  of  citizenship  in  this 
country.  It  is  not  knawu  that  he  has  ever  paid  any  taxes  in  the  United 
Statesj  indeed,  there  is  every  reason  to  believe  that  he  has  not.  It  is 
known  that  he  has  never  performed  any  public  service,  civil  or  military, 
in  or  for  the  United  Statesj  and  it  is  also  known  that  he  is  not  within 
the  call  of  the  United  States  should  his  services  be  at  any  time  in  the 
future  needed  in  the  nation's  defense.  Indeed,  it  may  be  assumed  from 
his  declarations  and  acts  that  if  at  any  future  time  the  United  States 
and  Germany  should  be  at  war,  Mr.  Karl  Klingenmeyer  would  be  found 
fighting  under  the  German  flag  and  against  the  United  States,  whose 
protection  he  is  now  claiming,  if  either  reason,  justice,  nor  public  law 
countenances  any  such  anomalous  condition  of  nationality,  so  that  with- 
out deciding  the  possible  judicial  question  of  two  years'  residence  in  the 
country  of  origin,  which  is  involved  in  the  fourth  article  of  the  treaty 
of  February,  18GS,  it  may  well  be  held  that  Mr.  Karl  Klingenmeyer  is 
not  on  his  present  application  entitled  to  a  United  States  passport,  aud 
your  refusal  to  comply  with  his  request  in  that  behalf  is  therefore  ap- 
proved by  the  Department. 

"1  have,  however,  deemed  it  most  expedient  to  place  the  refusal  on 
the  ground  indicated  in  this  instruction,  leaving  the  question  of  the  in- 
terpretation of  the  two  years'  clause  in  Article  IV  of  the  treaty  of  1868 
open  to  the  decision  of  the  Supreme  Court  of  the  United  States,  when 
the  question  in  proper  form  may  be  brought  before  that  tribunal.  You 
may  jmssibly  find  some  of  these  suggestions  of  value  in  future  cases  of 
a  similar  character  that  may  como  before  you." 

3Ir.  FrcliughuyHen,  Sec.   of  St:ito,  to  Mr.  Kassoo,  J.m,   l^,  lt>8r>.     MSS,  Iqst., 
Gfirra.;  For.  Rcl.,  IHBo, 

b.  Mis.  KL'— VOL.  11 -'7  417 


§  185.]   crnzEXsnir,  naturalization,  and  alienage,   [chap.  vii. 

"  I  have  received  Mr.  Yomiy's  dispatcli  No.  G58,  dated  the  23d  Feb- 
ruary, with  inclosiire,  intbrininjj  the  Depaitnient  that  he  had  instructed 
the  consul  at  Cauton  to  recognize  the  right  of  John  Frederick  Pearson 
to  American  citizenship,  and  have  given  it  my  careful  attention.     *     ♦ 

"  I  inclose  you  an  opinion  on  the  question  by  the  law  olliccr  of  the 
Department  by  which  you  will  see  that  inasmuch  as  Pearson's  father 
was  an  American  citizen,  the  nationality  of  his  mother  previous  to  mar- 
riage would  make  no  diOerence  in  the  son's  nationality,  provided  he  was 
legitimate,  unless  the  father  was  a  citizen  of  a  State  which  prohibits 
marriage  with  Chinese,  of  which  there  is  no  allegation  in  the  present 
instance." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.   Smitbeis,  May  4,  1885.     MSS.  Inst.,  China; 
For.  Kel.,  1885. 

The  citizenship  of  a  child  may  be  divested  by  his  return  with  his  par- 
ents to  their  country  of  origin,  and  his  subsequent  election,  when  of  full 
age,  of  citizenship  in  such  country-. 

See  Mr.  Porter,  Acting  Soc.   of  State,  to  Mr.  Jcsurnn,  June  16,  188G.     MSS. 
Dora.  Lot.     See  App.,  vol.  ili,  ^  185. 

"It  is  an  established  principle  of  international  law  that  a  child  born 
abroad  to  a  citizen  of  the  United  States  partakes  of  his  father's  nation- 
ality, subject,  however,  to  the  divesting  of  this  nationality  by  his  elec- 
tion, when  he  arrives  at  full  age,  to  accept  allegiance  to  the  country  of 
his  birth.  This  right  cannot  be  taken  from  him  either  by  municipal 
legislation  or  by  treaty  enactments  to  which  the  country  of  his  inherited 
allegiance  is  not  a  party.     *     *     * 

"It  is  also  a  principle  of  international  law  that  allegiance  can  be  di- 
vested by  naturalization  in  a  foreign  land,  and  that  this  prerogative  can- 
not be  divested  by  the  municipal  legislation  of  any  particular  country,  to 
which  legislation  the  naturalizing  country  is  not  a  i)arty.     *     ♦     * 

"Under  the  rules  of  international  law,  the  son,  having  been  born  in 
Alsace-Lorraine  of  an  American  father,  had  the  option  of  remaining 
there  until  his  majority  and  electing  to  take  the  allegiance  of  his  birth, 
or  of  claiming  the  allegiance  of  his  father.  It  appears,  however,  that 
he  did  not  remain  in  Alsace  until  he  attained  his  majority.  He  came  to 
the  United  States  during  his  minority,  and  when  he  arrived  at  his 
majority,  evinced  his  election  of  x\merican  citizenshii)  by  exercising  the 
rights  w^hich  pertain  thereto,  and  by  other  acts  indicating  the  same  elec- 
tion. Under  these  circumstances  his  subsequent  taking  out  of  natural- 
ization papers  is  to  be  regarded  merely  as  cumulative  evidence  of  his 
election  to  take  the  United  States  as  the  country  of  his  allegiance.  He 
was  already  a  citizen  of  the  United  States  and  was  none  the  less  so  be- 
cause he  may  have  entertained  unfounded  doubts  on  the  subject,  as 
from  his  conduct  would  appear  to  have  been  the  case." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Pendleton,  Apr.  27, 188G.     MSS.  Inst.  Germ. ; 

For.  Eel.  1880. 
As  to  passports  in  such  cases,  see  infra,  $  192. 

418 


CHAP.  VII.]  CHILDREN.  [§  185. 

Persons  born  in  the  colonies,  before  the  Declaration  of  Independence 
had  a  right  to  elect  whether  they  would  retain  their  native  allegiance 
to  the  British  Crown,  or  would  become  citizens  of  one  of  the  several 
States.  The  rule  as  to  the  point  of  time  at  which  Americans,  born 
before  the  Declaration  of  Independence,  ceased  to  be  British  subjects, 
differed  in  Eughind  and  in  the  United  States ;  England  taking  the 
treaty  of  peace  in  1783  ;  the  United  States,  the  date  of  the  declaration. 
It  was  not  necessary  that  the  election  should  have  been  manifested  by 
any  act  prior  to,  or  on  or  about,  the  4th  of  July,  177G.  Persons  remain- 
ing here  after  that  day  were,  j?n*;«a  facie,  to  be  deemed  American  citi- 
zens, but  this  presumption  was  subject  to  rebuttal  by  showing  adhesion 
to  the  British  Crown  during  the  struggle. 

Inglis  V.  Trustees,  &c.,  3  Pet.,  99. 

Where  a  person,  born  in  Texas  when  it  was  a  part  of  the  Eepublic  of 
Mexico,  the  ])lace  of  birth  being  also  the  domicile  of  her  father  and 
mother  until  their  deaths,  was  removed  to  Mexico  at  the  age  of  four 
years,  before  the  declaration  of  Texan  independence,  and  there  re- 
mained, it  was  held,  that  she  w'as  an  alien,  and  could  sue  in  the  courts 
of  the  United  States. 

Jones  V.  McMasters,  20  How.,  8. 

A  person  born  on  board  of  an  United  States  vessel,  of  parents  who 
are  citizens  of  the  United  States,  but  who  are,  at  the  time,  in  a  foreign 
country,  not  with  the  design  of  removing  thither,  but  only  having 
touched  there  in  the  course  of  a  voyage  which  the  father  has  made  as 
captain  of  the  vessel,  is  to  be  regarded  as  a  citizen  of  the  United  States. 
U.  S.  V.  Gordon,  5  Blatcb.,  18. 

Children  born  abroad,  whose  fathers  at  the  time  of  said  children's 
birth,  were  citizens  of  the  United  States,  are  citizens  of  the  United 
States  by  the  act  of  February  10,  1855.  But  if,  by  the  laws  of  the 
couutr^^  in  which  they  were  born  and  reside,  they  are  citizens  of  that 
country,  the  United  States  cannot  exempt  them  from  the  allegiance 
which  they  owe  to  the  country  of  their  birth  while  they  continue  within 
its  territory,  and  will  iiot  issue  passports  to  them  in  that  country  as  citi- 
zens of  the  United  States. 

l;}  Op.,  89,  Hoar,  18G9. 

Children  born  abroad  of  persons  once  citizens  of  the  United  States, 
but  who  have  become  citizens  or  subjects  of  a  foreign  power,  are  not 
citizens  of  the  United  States,  nor  entitled  to  i)rotectiou  as  such. 
14  Op.,  295,  Williams,  1873. 

419 


§  186.]     ClTlZEXiJUir,  NATURALIZATION,  AND  ALIENAGE.     [ciIAr.  VIL 

Yl.  MARRIED  WOMEN. 

A   M.VIUUED   WOMAX   PARTAKES   OK   HER   IIUSUAND'S  NATIONALITY. 

§18G. 

"Any  woman  who  is  now  or  may  lieroafter  be  married  to  a  citizen  of 
the  United  States,  and  who  might  herself  be  hxwiully  naturalized,  shall 
be  deemed  a  citizen. 

Rov.  Stat.,  ^  1094,  lormorly  act  of  Feb.  10,  1855,  chap.  71,  ^S  2;  10  Stat.  L.,  604. 
See  also  act  of  Mar,  '215,  1804,  2  Stat.  L.,  292,  as  to  widow  and  children  of 
alien  who  has  declared  his  intention. 

''  Inasmuch  as  the  subject  of  naturalization  is  within  the  exclusive 
jurisdiction  of  Congress,  there  would  seem  to  be  little  question  that  such 
a  marriage  (one  in  conformity  with  the  act  of  June  23,  1800)  would  be 
effectual  for  the  jjurpose  of  naturalizing  an  alien  female  married  to  a 
citizen  of  the  United  States." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bancroft,  June  7,  1870.     MSS.  Inst.,  Prussia. 

By  the  law  of  England  and  the  United  States  an  alien  woman,  on  her 
marriage  with  a  subject  or  citizen,  merges  her  nationality  in  that  of 
her  husband.  "  But  the  converse  has  never  been  established  as  the 
law  of  the  United  States,  and  only  by  the  act  of  Parliament  of  May  12, 
1870,  did  it  become  British  law  that  an  English  woman  lost  her  quality 
of  a  British  subject  by  marrying  an  alien,  The  continental  codes,  on 
the  other  hand,  enable  a  woman  whose  nationality  of  origin  has  been 
changed  by  marriage  to  resume  it  when  she  becomes  a  widow,  on  the 
condition,  however,  of  her  returning  to  the  country  of  her  origin.  The 
widow  to  whom  you  refer  may,  as  a  matter  of  strict  law,  remain  a  citi- 
zen, but  as  a  citizen  has  no  absolute  right  to  a  passport,  and  as  the  law 
of  the  United  States  has  outside  of  their  jurisdiction  only  such  force  as 
foreign  nations  may  choose  to  accord  it  in  their  own  territory,  I  think  it 
judicious  to  withhold  i)assports  in  such  cases  unless  the  widow  gives  evi- 
dence of  her  intention  to  resume  her  residence  in  the  United  States." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Washburne,  Feb.  24,  1871.    MSS.  Inst.,  France. 

"  I  have  your  dispatch  Ko.  G8,  respecting  the  case  of  Mrs.  Gordon, 
formerly  Topaz,  a  Kussian  woman  of  the  Hebrew  faith,  who  has  lately 
married  an  American  citizen.  It  is  understood  that  by  the  laws  of  Rus- 
sia she  could  not  while  a  subject  of  Russia  remain  in  the  Empire  with- 
out renouncing  her  faith  and  accepting  Christianity.  You  wish  to  know 
whether  by  her  marriage  to  an  American  such  a  ])erson,  under  the 
statutes  of  the  United  States  and  the  1st  article  of  the  treaty  of  1832 
with  Russia,  acquires  the  right  to  be  exempt  from  the  operation  of  the 
municipal  laws  of  Russia. 

''The  statute  of  the  United  States  regulating  the  status  of  alien 
women  manied  to  American  citizens  was  approved  on  the  10th  of  Febru- 
ary, 1855  (10  Stat.  L.,  G04).  By  this  statute  it  is  enacted  'that  any 
woman  who  might  lawfully  bo  naturalized  under  the  existing  laws,  mar- 
420 


CHAP.  VII.]  MARRIED    WOMEN.  [§  186. 

ried  or  who  shall  be  married  to  a  citizen  of  tbe  United  States,  shall  be 
deemed  and  taken  to  be  a  citizen.' 

"  The  Attorney-General  of  the  United  States  in  construing  this  stat- 
ute has  held  '  that  irrespective  of  the  time  or  place  of  marriage,  or  the 
residence  of  the  parties,  any  free  white  woman,  not  an  alien  enemy, 
married  to  a  citizen  of  this  country,  is  to  be  taken  and  deemed  a  citizen 
of  the  United  States.' 

"■  There  can  therefore  be  no  doubt  that  such  a  person  would,  upon 
her  marriage  to  an  American  citizen,  acquire  the  right  to  be  regarded 
by  the  authorities  of  the  Uuited  States  as  an  American  citizen  in  every 
country  except  that  to  which  she  owed  allegiance  at  the  time  of  her 
marriage. 

"It  is  understood  at  the  Department  that  the  laws  of  Eussia  regard 
a  Eussian  subject  marrying  a  foreign  subject  as  a  foreigner.  In  such 
case  no  conflict  of  law  could  arise,  because  the  Eussian  Government 
would  concede  the  full  American  citizenship  of  the  married  woman. 

"  But  should  it  be  otherwise,  her  relations  to  that  Government  would 
be  affected  by  another  opinion  of  the  Attorney-General  (given  by  At- 
torney-General Hoar),  that  while  the  United  States  may  by  law  fix  or 
declare  the  conditions  constituting  citizens  of  the  country  within  its 
own  territorial  jurisdiction,  and  maj'  confer  the  rijjhts  of  American  cit- 
izens everywhere  upon  persons  who  are  not  rightfully  subject  to  the 
authority  of  any  foreign  country  or  Government,  it  ought  not,  by  under- 
taking to  confer  the  rights  of  citizenship  upon  the  subject  of  a  foreign 
nation,  who  had  not  come  within  our  territory,  to  interfere  with  the  just 
rights  of  such  nation  to  the  government  and  control  of  its  own  subjects." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Jewell,  June  9,  1874.     MSS.  Inst.,  Russia. 

A  woman  partakes  of  her  husband's  nationality. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Perez,  Mar.  18,  1872.    MSS.  Notes,  Nicaragua.    Mr. 
Fish  to  Mrs.  Negrete,  Oct.  28,  1874.     MSS.  Dom.  Let. 

A  woman  who  is  a  citizen  of  the  United  States  merges  her  nationality 
in  that  of  a  foreign  husband  on  her  marriage ;  but  it  does  not  neces- 
sarily follow  that  she  thus  becomes  subject  to  all  tbe  disabilities  of 
alienage,  such  as  inability  to  inherit  or  transfer  real  property. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Williamson,  Sept.  22,  1875.     MSS.  Inst.,  Costa 
Rica. 

A  wife's  political  status  follows  that  of  her  husband. 

Mr.  Frelingliuyseu,  Sec.  of  Slate,  to  Mr.  Lawrence,  Mar.  31,  188.3.     MSS.  Dom. 
Let.     Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Foster,  Ajir.  2,  1883;  ibid. 

A  wife's  nationality  and  domicile,  for  business  purposes,  follows  that 

of  her  husband. 

•      Mr.  Frelinghuysen,  Sec.  of  State,  to  Mrs.  Walsh,  .Jan.  31.  1884.     MSS.  Dom.  Let. 
As  to  passports  in  fcuch  rasoH,  see  infra,  $  I'JvJ. 

421 


§186.]    CITIZENSHIP,  XATUKALJZATION,  AND  ALIENAGE.    [ciIAi'.   VII. 

A  woman  who  was  bom  in  South  Carolina  and  resided  witli  her  lather, 
a  citizen  of  that  State,  in  Charleston,  at  the  time  of  the  Declaralion  of 
Independence  and  afterwards,  till  1781,  when  she  was  married  to  a 
British  oflBcer,  with  whom  she  went  to  England  in  1782,  where  she  re- 
mained till  her  death  in  1801,  was  held  to  be  an  alien.  Tlie  opinion  of 
the  court  was  not  that  she  ceased  to  be  a  citizen  simply  by  her  mar- 
riage to  an  alien,  but  that  her  withdrawal  with  her  husband,  and  her 
permanent  adherence  to  the  side  of  the  enemies  of  the  State  down  to 
and  at  the  time  of  the  treaty  of  peace  (1783),  operated  as  a  virtual  dis- 
solution of  her  allegiance  by  au  election  which  her  coverture  did  not 
prevent  her  from  making. 

Shanks  v.  Diipont,  3  Pet.,  242. 

The  domicil  of  a  widow  is  presumed  to  be  that  of  her  deceased  hus- 
band, unless  she  has  exercised  her  right  to  change  it. 
Peunsylvania  v.  Raveuel,  21  IIow.,  10.'3. 

Where  a  woman  is  divorced  a  mensa  et  thoro,  her  domicil  is  not  aftected 
by  the  removal  of  her  husband  to  another  country. 
Barber  v.  Barber,  21  How.,  582. 

Under  section  11)94,  Revised  Statutes,  as  well  as  by  international  law, 
a  woman  who  is  married  to  a  citizen  of  the  United  States  partakes  of 
his  citizenship,  whenever  acquired,  though  residing  abroad. 

Kelly  r.  Owen,  7  "Wall.,  496;  Leonard  v.  Grant,  5  Fed.  Rep.,  11,  6  Sawyer,  003; 
U.  S.  V.  Kellar,  11  Biss.,  314;  14  Op.,  402. 

A  woman  of  foreign  birth,  naturalized  in  this  country  by  her  mar- 
riage with  a  citizen  of  the  United  States,  resumes  her  alienage  by  her 
marriage  with  a  subject  of  her  native  country. 
Pequinot  v.  Detroit,  16  Fed.  Eep.,  211. 

The  residence  of  a  citizen  of  the  United  States,  with  her  husband,  in 
a  foreign  country,  of  which  he  is  a  subject,  does  not  per  sc  expatriate 
either  her  or  a  daughter,  by  said  husband,  born  before  her  removal  from 
the  United  States. 

10  Op.,  321,  Bates,  1862. 

A  woman  was  born,  married  a  French  citizen,  and  always  resided,  be- 
fore and  after  the  death  of  her  husband,  in  France.     It  was  held  that 
she  was  a  French  subject,  though  her  father,  at  the  time  of  her  birth, 
was  a  citizen  of  the  United  States. 
12  Op.,  7,  Stanbery,  1866. 

A  woman,  born  in  the  United  States,  who  marries  a  citizen  of  France, 
when  she  becomes  domiciled  there  loses  her  citizenship  of  origin,  so  far 

422 


CHAP.  VII.]  TERRITORIAL    CHANGE.  [§  187. 

as  concerns  the  question  of  liability  to  taxation  imder  tbe  one  hundred 
and  sixteenth  section  of  the  act  of  June  30, 1864. 

13  Op.,  128,  Hoar,  1869;  citing  an  opinion  of  Mr.  Stanbery,  Attorney-General, 

to  same  effect. 
Judge  Hoar,  in  bis  opinion,  says  that  lie  reserves  the  question  whether  "a 
woman  who  is  a  citizen  of  the  United  States,  and  has  become  by  marriage 
a  citizen  of  France,  is  not  after  such  a  marriage  a  citizen  of  tbe  United 
States  in  a  qualified  sense." 

Under  section  2  of  the  act  of  February  10, 1855,  any  free  white  woman, 
not  an  alien  enemy,  married  to  a  citizen  of  the  United  States,  is  to  be 
taken  and  deemed  a  citizen  also,  irrespective  of  the  time  or  place  of 
marriage  or  the  residence  of  the  parties. 

14  Op.,  402,  WiUiams,  1874. 

The  citizenship  acquired  by  an  alien  woman,  through  marriage  to  a 
citizen  of  the  United  States,  is  not  lost  by  the  death  of  her  husband ; 
nor  does  the  mere  fact  of  her  subsequent  marriage  to  an  alien  divest 
her  of  the  citizenship  so  acquired. 

15  Op.,  599,  Phillips,  1877. 

"In  18G2,  it  was  decided  by  the  British  Government,  in  the  case  of 
American  born  widows  of  British  subjects,  that  if  the  American  law 
was  at  variance  with  their  own  (conferring  upon  the  wives  of  British 
subjects  the  privileges  of  natural-born  British  subjects),  and  the  United 
States  desired  to  put  the  American  law  in  force,  the  American  law  must 
prevail,  and  American  born  widows  being  resident  in  America  would 
not  be  entitled  to  a  certificate  of  being  British  subjects.  The  British 
Government  further  decided  iu  the  case  of  British-born  subjects,  the 
widows  of  American  or  foreign  husbands,  that  if  after  the  dissolution 
of  their  coverture  they  should  elect  to  claim  the  benefit  of  their  British 
character,  they  would  be  at  liberty  to  do  so,  and  must  be  treated  and 
protected  as  British  subjects  (Pari.  Pap.  No.  189)." 

1  Halleck'slnt.  Law  (Baker's  ed.),  369. 

VII.  TERRITORIAL  CHANGE. 

(1)  Allegiance  follows. 

§  187. 

On  this  subject  sec  supra,  ^^  '^ff. 

By  an  act  of  the  4th  of  October,  177G,  the  State  of  New  Jersey 
asserted  its  right  to  the  allegiance  of  all  persons  born  and  then  residing 
within  the  territory  of  the  State.  Therefore,  one  who  was  born  there, 
and  continued  to  reside  there  till  1777,  was  a  citizen  of  the  State;  and 
his  leaving  the  State  afterwards,  and  actually  adhering  to  the  side  of 
the  Crown  did  not  render  him  an  alien,  nor  did  the  treaty  of  peace  of 
1783  have  that  effect. 

Mcllvainc  v.  Coxe's  Lessee,  4  Craucli,  209. 

423 


§  187.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VIT 

But  it  lias  been  held  that  a  resident  of  Xew  York,  wbo,  independently 
of  any  act  of  tlic  legislature  of  the  State  which  might  affect  his  status, 
had  elected  to  be  an  alien,  was  not  made  a  citizen  of  the  State  by  the 
resolution  of  the  convention  of  New  York  of  the  IGth  of  July,  177G, 
"that  all  persons  abiding  within  the  State  of  Xew  York,  and  desiring 
protection  from  the  laws  of  the  same,  owe  allegiance  to  the  said  laws, 
and  are  members  of  the  State";  he  being  then  within  the  British  lines, 
and  under  the  protection  of  the  British  ainiy,  manifesting  a  full  deter- 
mination to  continue  a  British  subject.  But  if  be  had  ever  owed  any 
allegiance  to  the  State,  it  was  held  that  he  would  have  been  released 
from  it  by  a  subsequent  bill  of  attainder  by  which  he  was  declared  to 
be  forever  banished  from  the  State,  and  adjudged  guilty  of  treason 
should  he  be  found  there. 

Inglis  V.  Trustees,  »fcc.,  :>  Pet.,  09. 

"The  American  States  [during  the  Revolutionary  war]  insisted  upon 
the  alleg^iance  of  all  born  within  the  States  respectively,  and  Great 
Britain  asserted  an  equally  exclusive  claim.  The  treaty  of  peace  of  1783 
acted  upon  the  state  of  things  as  it  existed  at  that  i^eriod.  It  took  the 
actual  state  of  things  as  its  basis.  All  those,  whether  natives  or  other- 
wise, who  then  adhered  to  the  American  States  were  virtually  absolved 
from  all  allegiance  to  the  British  Crown.  All  those  who  then  adhered 
to  the  British  Crown  were  deemed  and  held  subjects  of  that  Crown. 
The  treaty  of  peace  was  a  treaty  operating  between  the  States  on  each 
side  and  the  inhabitants  thereof.  In  the  language  of  the  seventh  arti- 
cle, it  was  a  firm  and  perpetual  peace  between  His  Britannic  Majesty  and 
the  said  States,  'and  between  the  subjects  of  the  one  and  the  citizens  of 
the  other.'  Who  were  then  subjects  or  citizens  was  to  be  decided  by 
the  state  of  facts.  If  they  were  originally  sul)jeets  of  Great  Britain,  and 
then  adhered  to  her,  and  were  claimed  by  her  as  subjects,  the  treaty 
deemed  them  such.  If  they  were  originally  British  subjects,  but  then  ad- 
hering to  the  States,  the  treaty  deemed  them  citizens.  Such.  I  think,  is  the 
natural,  and.  indeed,  almost  necessary  meaning  of  the  treaty  ;  it  would 
otherwise  follow  that  there  would  continue  a  double  allegiance  of  many 
persons,  an  inconvenience  which  must  have  been  foreseen,  and  would 
cause  the  most  injurious  effects  to  both  nations.  *  *  *  Itdoesnotap- 
pear  to  us  that  her  situation  as  a  feme  covert  disabled  her  from  a  change 
of  allegiance.  British /<?w?es  C'0?'crf,  residing  herewith  their  husbands 
at  the  time  of  our  independence,  and  adhering  to  our  side  until  the 
close  of  the  war,  have  been  always  supposed  to  have  become  thereby 
American  citizens  and  to  have  been  absolved  from  their  antecedent 
British  allegiance.  The  incapacities  of  femes  covert,  provided  by  the 
common  law,  apply  to  their  civil  rights,  and  arc  for  their  protection  and 
interest.  But  they  do  not  reach  their  political  rights,  nor  prevent  their 
acquiring  or  losing  a  national  character.  The  political  rights  do  not 
stand  upon  the  mere  doctrines  of  municipal  law,  applicable  to  ordinary 

424 


CHAP.  VII.]  TERRITORIAL    CHANGE.  [§  187. 

trausiictions,  but  stand  upon  the  more  general  princii)les  of  the  law  of 
nations.  The  case  of  Martin  t\The  Commonwealth,  1  Mass.,  347,  turned 
upon  very  different  considerations.  There  the  question  was,  whether  a 
feme  covert  should  be  deemed  to  have  forfeited  her  estate  for  an  offense 
committed  with  her  husband,  by  withdrawing  from  the  State,  &c.,  under 
the  confiscation  act  of  1779;  and  it  was  held  that  she  was  not  within 
the  purview  of  the  act.  The  same  remark  disposes  of  the  case  of  Sewall 
V.  Lee,  9  Mass.,  3G3,  where  the  court  expressly  refused  to  decide  whether 
the  wife,  by  her  withdrawal  with  her  husband,  became  an  alien.  But 
in  Kelly  v.  Harrison,  2  Johns.,  29,  the  reasoning  of  the  court  proceeds 
upon  the  assumption  that  the  wife  might  have  acquired  the  same  citi- 
zenship with  her  husband,  by  withdrawing  with  him  from  the  British 
dominions.  See  also  Bac.  Abridg.  Alien,  A ;  Cro.  Car.,  GO  1 ,  G02 ;  4  Term. 
Eep.,  300;  Brook's  Abr.  Denizen,  21;  Jackson  v.  Lunn,  3  Johns.,  109." 
Story,  J.;  Shanks  t'.Dupont,  3  Pet.,  247,  248;  infra,  ^  188. 

Where,  after  a  conquest,  a  treaty  provided  that  those  of  the  inhabi- 
tants who  wished  to  adhere  in  allegiance  to  their  vanquished  sovereign, 
might  sell  their  property,  provided  they  sold  it  to  a  certain  class  of  per- 
sons and  within  a  time  named,  the  property,  if  not  so  sold,  became 
abandoned  to  the  conqueror. 

U.  S.  V.  Repentiguy,  5  "Wall.,  211.     See  supra,  ^§  ^ff- 

On  a  transfer  of  territory  by  one  nation  to  another  the  political  rela- 
'tions  between  the  inhabitants  of  the  ceded  territory  and  the  former  Gov- 
ernment are  changed,  and  new  ones  arise  between  them  and  the  new 
Government. 

ToLiu  V.  Walkinshaw,  McAll.,  18C;  infra,  $  188. 

Alaska  is  not  "  Indian  country,"  as  the  term  is  used  in  the  intercourse 
act  of  1834  and  in  the  Revised  Statutes.  "Who  are  citizens  of  the 
United  States  in  Alaska  under  article  3  of  the  treaty  of  1807  may  be 
a  difficult  question  to  determine.  The  treaty  furnishes  the  law,  but  the 
difficulty,  if  any,  will  arise  in  the  application  of  it.  Under  the  treaty 
the  inhabitants  of  Alaska  at  that  date  who  did  not  return  to  Russia 
within  three  years  thereafter  became  citizens  of  the  United  States,  ex- 
cepting members  of  the  uncivilized  tribes.  The  word  '  white '  in  the  sec- 
ond clause  is  no  longer  regarded  as  the  law  of  the  state,  and  is  expressly 
displaced,  so  far  as  the  courts  of  the  United  States  are  concerned,  by 
the  proviso  to  section  2  of  the  act  of  1870,  supra.  The  words  '  county  in 
which  he  is  returned,'  in  the  same  clause,  must  be  held  inapplicable 
to  Alaska,  where  tbere  arc  no  counties,  and  their  place  supplied  by  the 
word  *  district.' " 

Deady,  J. ;  Kie  r.  U.  S.,  27  Fed.  Rep.,  351  (168G).    See  suiva,  $  159. 

Annexation,  as  is  noticed  by  Calvo  (droit  int.,  '4d  ed.,  vol.  2,  SO),  does 
not  necessarily  imply  naturalization  of  tlie  annexed  population.  When 
Hanover  was  attached  to  Great  Jiritain  in  1714  by  the  accession  of  the 

425 


§  188.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [ciIAP.  VII. 

house  of  Uanover  to  the  British  throne  there  was  no  fusion  of  the  na- 
tionalities by  which  a  nietnber  t)f  one  became  a  member  of  the  other; 
and  tlie  same  incidents  accompanied  the  reunion  of  Norway  and  Sweden 
in  1814,  and  the  temi)orary  absorption  of  Italy  in  France  under  the  tirst 
Napolet)n.  Ordinarily  a  treaty  of  cession  aiul  annexation  jiives  to  the 
citizens  ot  the  annex»'d  country  the  ])osition  of  citizens  of  the  country 
aunexin;^-.  Thus  by  the  third  artu'le  of  tlM>  convention  with  Fiance  of 
1S0;{  for  the  purchase  of  Louisiana,  it  is  stii)nlatcd  that  the  inhabitants 
t)f  (he  ceded  territory  shall  be  incorporated  in  the  United  States,  aiul 
admitted  to  the  eiiJoyuuMit,  as  soon  as  is  i)ractical>le,  of  the  ])rivilcj;es 
of  citizens  of  the  I'Uited  States.  A  similar  i)rovision  is  found  in  the 
sixth  aiticle  of  the  treaty  with  Spain  for  th(^  i)urchasc  of  l''lori<la.  By 
the  resolution  of  Conirress  of  jMarch  1,  LS45,  annexing  Texas,  citizens 
of  Texas,  by  its  becoming  a  State  of  the  Union,  became  citizens  of  the 
United  Stales.     (See  isiqn-a,  §§  4.^'.) 

(•J)   NaTU1!AL1ZATU)X   by   laCVOI.UTION  OR  TKKATY. 

§  188. 

See,  ou  this  topic,  sitjn-a,  ^^  ^f.     Tliat  subjection  is  duo  to  a  dv  facio  Govern- 
ment, SCO  supra,  ^  1 . 

"Foreigners  who.  during  the  existence  of  the  Articles  of  Confedera- 
tion, became  inhal>itants,  or,  taking  the  expression  in  its  most  limited 
sense,  were  admitted  citizens  of  any  State,  became  thereby  entitled  to 
the  ])rivileges  of  citizens  in  the  several  States,  and  were,  to  all  intents 
and  i>urposes,  citizens  of  the  United  States  at  the  time  of  the  adoption 
of  the  Constitution  of  the  United  States.  The  contrary  opinion  would 
lead  to  the  extraordinary  conclusion  that  the  several  thousand  foreign- 
ers naturalized  under  the  laws  of  the  States  juior  to  the  adoption  of  the 
Constitution  of  ihe  United  States,  not  being  then  deemed  citizens  of  the 
United  States,  Avould  be  forever  ineligible,  whilst  those  naturalized  under 
the  acts  of  Congress  subsequent  to  the  adoption  of  the  Constitution 
would,  as  citizens  of  the  United  States,  become  eligible  to  cither  house 
of  Congress." 

Mr.  Gallatin  to  Mr.  Lowrie,  Fob.  19,  18LM.    2  Gallatin's  Writings,  287. 

An  infant  who  was  born  in  America  before  the  Declaration  of  Inde- 
pendence and  resided  in  New  York  with  his  father,  a  British  partisan, 
during  the  subsequent  conflict,  and  went  with  him  to  England  shortly 
before  the  evacuation  of  the  city  by  the  British  in  November,  1783,  and 
never  returned,  niust  be  deemed  to  have  followed  the  condition  of  his 
father  and  to  have  adhered  to  the  Crown. 
Inglis  V.  Trustees,  &c.,  3  Pet.,  99. 

"  But  it  is  insisted  that  the  treaty  of  peace  operating  upon  his  con- 
dition at  that  time,  or  afterwards,  he  became  an  alien  to  the  State  of 
New  Jersey  in  consequence  of  his  election  then  made  to  become  a  sub- 
ject of  the  King,  and  his  subsequent  conduct  confirming  that  election. 
In  vain  have  we  searched  that  instrument  for  some  clause  or  expression 
which,  by  any  implication,  could  work  this  effect.  It  contains  an  ac- 
knowledgment of  the  independence  and  sovereignty'  of  the  United 
426 


CHAP.  VII.]  TERRITORIAL    CHANGE.  [§  188. 

States  in  their  political  caiuicities,  and  a  relinquisbmeut  on  tbe  part 
of  His  Britannic  Majesty  of  all  claim  to  tbe  government,  proprietary, 
and  territorial  rights  of  the  same.  These  concessions  amounted,  no 
doubt,  to  a  formal  renunciation  of  all  claim  to  the  allegiance  of  the  citi- 
zens of  the  United  States.  But  tbe  question  who  were  at  that  period 
citizens  of  the  United  States  is  not  decided,  or  in  the  slightest  degree 
alluded  to,  in  this  instrument;  it  was  left  necessarily  to  depend  upon 
tbe  laws  of  tbe  respective  States,  who,  in  their  sovereign  capacities, 
had  acted  authoritatively  upon  the  subject.  It  left  all  such  persons  in 
the  situations  it  found  them,  neither  making  those  citizens  who  had,  by 
the  laws  of  any  of  the  States,  been  declared  aliens,  nor  releasing  from 
their  allegiance  any  who  bad  become,  or  were  claimed  as,  citizens.  It 
repeals  no  laws  of  any  of  the  States  which  were  then  in  force  and  oper- 
ating upon  this  subject,  but,  on  the  contrary,  it  recognizes  their  validity 
by  stipulating  that  Congress  should  recommend  to  the  States  the  recon- 
sideration of  such  of  them  as  had  worked  coufiscaticms.  If  the  laws  re- 
lating to  this  subject  were,  at  that  period,  in  the  language  of  one  of  the 
counsel,  temporary  audfuncti  officio,  they  certainly  were  not  rendered 
so  by  the  terms  of  the  treaty  nor  by  the  political  situation  of  the  two 
nations,  in  consequence  of  it.  A  contrary  doctrine  is  not  only  incon- 
sistent with  the  sovereignties  of  the  States,  anterior  to  and  independent 
of  the  treaty,  but  its  indiscriminate  adoption  might  be  productive  of 
more  mischief  than  it  is  possible  for  us  to  foresee. 

"  If,  then,  at  the  i^eriod  of  the  treaty,  the  laws  of  New  Jersey,  which 
had  made  Daniel  Coxe  a  subject  of  that  State,  were  in  full  force,  and 
were  not  repealed  or  in  any  manner  affected  by  that  instrument;  if  by 
force  of  these  laws  he  was  incapable  of  throwing  off  his  allegiance  to 
the  State  and  derived  no  right  to  do  so  by  virtue  of  the  treaty,  it  fol- 
lows that  he  still  retains  the  capacity,  which  be  possessed  before  the 
treaty,  to  take  lands  by  descent  in  Xew  Jersey,  and,  consequently,  that 
the  lessor  of  the  plaintiff  is  entitled  to  recover." 

Cnsbiug,  J.  ;  Mcllvaiue  v.  Coxe,  4  Cranch,  '214,  215. 

"  With  reference  to  persons  born  before  the  Kevolution  it  has  been 
held :  That  one  born  in  and  always  a  resident  of  Great  Britain  was  an 
alien  (Dawson  v.  Godfrey,  4  Cranch,  321 ;  Fairfox  v.  Hunter,  7  ihul,  G03; 
Blight  V.  Bochester,  7  Wheat.,  535 ;  Contee  v.  Godfrey,  1  Cranch  C.  Ct., 
470) ;  that  one  born  here,  but  who  left  the  country  before  the  Declara- 
tion of  Independence,  and  did  not  return  (until  after  tlie  treaty)  became 
an  alien  (Inglis  v.  The  Sailor's  Snug  Harbor,  3  Pet.,  1>9  ;  HoUingsworth 
V.  Duane,  Wall.C.  Ct.,51) ;  a'so,  that  a  ])ersonborn  in  New  Jersey  before 
the  year  1775,  and  residing  there  until  the  yenr  1777,  although  then 
joining  tbe  British  army,  and  ever  alterwards  claiming  to  be  a  British 
snl)jcct,  was  not  an  alien,  but  a  citizen  (Mcllvaine -?'.  Coxe,  4  Cranch, 
209;  and  see  explanations  in  Inglis  v.  Trustees,  «&c.,  3  Pet.,  00)." 

Summary  in  Abb.  Nat.  Dig.,  lit.  Alien. 

"It  is  universally  admitted,  both  in  tbe  lOnglish  courts  and  in  those 
of  our  own  country,  that  all  persons  born  within  tbe  colonies  of  North 

427 


^  188.]     CITIZEXSniP,  NATURALIZATION,  AND  ALIENAGE.    [ciTAr.  VII. 

Aiiu'iica,  whilst  subject  to  the  Crowu  of  Great  Britain,  were  uatural- 
borii  British  subjects,  and  it  must  necessarily  folh)\v  tliat  that  charac- 
ter was  chaufjed  by  the  separation  of  the  colonies  from  the  parent  state, 
and  the  acknowledjiment  of  their  independence. 

"The  rule  as  to  the  jmint  of  time  at  wliich  the  American  an<<?  ?ia^i 
eeavsed  to  be  British  subjects,  ditters  in  this  country  and  in  England,  as 
established  by  the  courts  of  justice  in  the  respective  countries.  The 
English  rule  is  to  take  the  date  of  the  treaty  of  i)eace  in  1783;  our  rule 
is  to  take  the  date  of  the  Declaration  of  Independence;  and  in  the 
application  of  tlie  rule  to  difl'erent  cases  some  difference  in  opinion  may 
arise.  The  settled  doctrine  of  this  country  is  that  a  person  born  here, 
who  left  the  country  belore  the  Declaration  of  Independence,  and  never 
returned  here,  became  thereby  an  alien,  and  incapable  of  taking  lands 
subsequently  by.  descent  in  this  country.  The  right  to  inherit  depends 
upon  the  existing  state  of  allegiance  at  the  time  of  descent  cast.  The 
descent  cast  being.in  this  case  long  after  the  treaty  of  peace,  the  diffi- 
culty which  has  arisen  in  some  cases  where  the  title  was  acquired  be- 
tween the  Declaration  of  Independence  and  the  treaty  of  peace,  does 
not  arise  here.  Prima  facie,  and  as  a  general  rule,  the  character  in  which 
the  American  ante  nati  are  to  be  considered,  will  depend  upon  and  be  de- 
termined by  the  situation  of  the  party  and  the  election  made  at  the  date 
of  the  Declaration  of  Independence  according  to  our  rule,  or  tlie  treaty 
of  peace  according  to  the  British  rule.  But  this  general  rule  must  neces- 
sarily be  controlled  by  special  circumstances  attending  particular  cases. 
And  if  the  right  of  election  is  at  all  admitted,  it  must  be  determined,  m 
most  cases,  by  what  took  place  during  the  struggle,  and  between  the 
Declaration  of  Independence  and  the  treaty  of  peace.  To  say  that  the 
election  must  have  been  made  before  or  immediately  at  the  Declaration 
of  Independence,  would  render  the  right  nugatory. 

"The  doctrine  of  perpetual  allegiance  is  not  ai)plied  by  the  British 
courts  to  the  American  ante  nati.  This  is  fully  shown  by  the  late  case 
of  Doe  V.  Acklain,  2  Barn.  &  Cresw.,  779.  Chief-Justice  Abbott  says: 
'James  Ludlow,  the  father  of  Frances  May,  the  lessor  of  the  plaintiff", 
was  undoubtedly  born  a  subject  of  Great  Britain.  He  was  born  in  a 
part  of  America  which  was  at  the  time  of  his  birth  a  British  colony, 
and  parcel  of  the  dominionsof  the  Crown  of  Great  Britain  ;  but,  upon  the 
fact  found,  we  are  of  opinion  that  he  was  not  a  subject  of  the  Crown  of 
Great  Britain  at  the  time  of  the  birth  of  his  daughter.  She  was  born 
after  the  independence  of  the  colonies  was  recognized  by  the  Crown  of 
Great  Britain,  after  the  colonies  bad  become  United  States,  and  their 
inhabitants  generally  citizens  of  those  States.  And  her  father,  by  his 
continued  residence  in  those  States,  manifestly  became  a  citizen  of 
them.'  He  considered  the  treaty  of  peace  as  a  release  froin  their  alle- 
giance of  all  British  subjects  who  remained  there.  A  declaration,  says 
he,  that  a  state  shall  be  free,  sovereign,  and  iiidepcndent,  is  a  declara- 
428 


CHAP.  VII.]  TEKEITORIAL    CHANGE.  [§  188. 

tiou  that  the  people  composiug  the  state  shall  uo  longer  be  cousidered 
as  subjects  of  the  sovereign  by  whom  such  a  declaratiou  is  made.  And 
this  court,  in  the  case  of  Blight's  Lessee  v.  Rochester,  7  Wheat.,  544, 
adopted  the  same  rule  with  respect  to  the  right  of  British  subjects  here  : 
That  although  boru  before  the  Eevolution  they  are  equally  incapable  with 
those  born  subsequent  to  that  event  of  inheriting  or  transmitting  the 
inheritance  of  lands  in  this  country.  The  British  doctrine,  therefore,  is 
that  the  American  ante  nati,  by  remaining  in  America  alter  the  treaty 
of  peace,  lost  their  character  of  British  subjects.  And  our  doctrine  is, 
that  by  withdrawing  from  this  country  and  adhering  to  the  British 
Government,  they  lost,  or,  perhaps  more  properly  speaking,  never 
acquired,  the  character  of  American  citizens. 

"This  right  of  election  must  necessarily  exist  in  all  revolutions  like 
ours,  and  is  so  well  established  by  adjudged  cases  that  it  is  entirely 
unnecessary  to  enter  into  an  examination  of  the  authorities.  The  only 
difljculty  that  can  arise  is  to  determine  the  time -when  the  election 
should  have  been  made.  (Vattel,  b.  1,  c.  3,  §  33;  1  Dall.,  58;  2  Ball., 
234;  20  Johns.,  332 ;  2  Mass.,  179,  23G,  244,  n. ;  2  Pickering,  394;  2 
Kent's  Com.,  49.) 

"  I  am  not  aware  of  any  case  in  the  American  courts  where  this  right 
of  election  has  been  denied,  except  that  of  Ainsley  v.  Martin  (9  Mass., 
454).  Chief-Justice  Parsons  does  there  seem  to  recognize  and  ai)ply  the 
doctrine  of  perpetual  allegiance  in  its  fullest  extent.  He  there  declares 
that  a  person  born  in  Massachusetts,  and  who,  before  the  4th  of  July, 
177G,  withdrew  into  the  British  dominions  and  never  since  returned 
into  the  United  States  was  not  an  alien  ;  that  his  allegiance  to  the  King 
of  Great  Britain  was  founded  on  his  birth  within  his  dominions,  and 
that  that  allegiance  accrued  to  the  Commonwealth  of  Massachusetts 
as  his  lawful  successor.  But  he  adds  what  may  take  the  present  case 
even  out  of  his  rule:  '  It  not  being  alleged '  says  he, '  that  the  demand- 
ant has  been  expatriated  by  virtue  of  any  statute  or  any  judgment  of 
law.'  But  the  doctiine  laid  down  in  this  case  is  certainly  not  that 
which  prevailed  in  the  supreme  judicial  court  of  Massachusetts  both 
before  and  since  that  decision,  as  will  appear  by  the  cases  above  re- 
ferred to  of  Gardner  v.  Ward,  2  Mass.,  244,  n.,  and  Kilhara  v.  Ward,  2 
Mass.,  23G,  and  of  George  Phipps,  2  Pickering,  394,  n. 

"  John  Inglis,  if  born  before  the  Declaratiou  of  Independence,  must 
have  been  very  young  at  that  time  and  incapable  of  making  an  election 
for  himself;  but  he  must,  alter  such  a  lapse  of  time,  be  taken  to  have 
adoj)ted  and  ratified  the  choice  made  for  him  by  his  father,  and  still  to 
retain  the  character  of  a  British  subject  and  never  to  have  become  an 
American  citizen,  if  his  father  was  so  to  be  considered.  Ue  was  taken 
from  this  country  by  his  father  before  the  treaty  of  peace,  and  has  con- 
tinued ever  since  to  reside  within  the  British  dominions  without  signi- 
fying any  dissent  to  the  election  made  for  him,  and  this  ratificniion  :is 

429 


^  188.]    CITIZENSIIir,  NATUKALIZATIOX,  AND  ALIENAGE.    [CIIAP.  VII. 

to  all  Lis  lights  uiust  relate  back  aud  have  the  same  effect  and  opera- 
tion as  if  the  election  had  been  made  by  himself  at  that  time. 

"  How,  then,  is  his  father,  Charles  Inglis,  to  be  considered  ?  Was  he 
au  American  citizen  ?  Ue  was  here  at  the  time  of  the  Declaration  of 
Independence,  and  irrima  facie  may  be  deemed  to  have  become  thereby 
an  American  citizen.  But  this  prima  facie  presumption  may  be  re- 
butted, otherwise  there  is  no  force  or  meaninj^  in  the  right  of  elec- 
tion.    ♦    *     * 

"  Tlie  case  of  Mcllvaine  r.  Coxe's  Lessee,  4  C,  211,  which  has  been 
relied  upon,  will  not  reach  this  case.  The  court  in  that  case  recognized 
fully  the  right  of  election,  but  considered  that  Mr.  Coxe  had  lost  that 
right  by  remaining  in  the  State  of  Xew  Jersey,  not  only  after  she  had 
declared  herself  a  sovereign  State,  but  after  she  had  ])assed  laws  by 
which  she  pronounced  him  to  be  a  member  of,  and  in  allegiance  to,  the 
new  Government ;  that  by  the  act  of  the  4th  of  October,  177G,  he  became 
a  member  of  the  new  society,  encitled  to  the  protection  of  its  Govern- 
ment.    *     *     ♦ 

"It  cannot,  I  presume,  be  denied,  but  that  allegiance  may  be  dis- 
solved by  the  mutual  consent  of  the  Government  and  its  citizens  or 
subjects.  The  Government  may  release  the  governed  from  their  alle- 
giance." 


ce." 

Tlioiupsoii,  J.  ;  luglis  r.  Trustees,  «fcc.,  3  Pet.,  120 _^. 


The  capture  of  Charleston,  S.  C.  by  the  British  forces  in  ^lay,  1780, 
did  not  permanently  change  the  allegiance  or  the  national  character  of 
the  inhabitants. 

Sbauk  r.  Dnpont,  3  Pet.  242. 

All  British  subjects,  as  well  those  who  residing  in  the  States  at  the 
time  of  the  Declaration  of  Independence  elected  at  or  before  the  time  of 
the  treaty  of  peace  in  1783  to  remain  subject  to  the  crown,  as  others, 
were  protected  by  the  treaty  of  1794  in  their  possession  of  lands  in  the 
Cnited  States. 

Ihid. 

Under  the  constitution  of  Texas  of  182G,  which  identified  as  citizens 
only  those  who  resided  there  on  the  day  of  the  declaration  of  inde- 
l)endeuce,  or  should  be  naturalized,  and  provided  that  no  alien  should 
hold  laud  in  Texas  exce))t  by  titles  emanating  from  the  Government, 
and  the  act  of  1840  adoptiug  the  common  law  of  England,  one  who 
removed  from  Texas  to  Mexico  during  the  revolution  aud  before  the 
declaration  of  independence,  and  remained  in  Mexico,  is  an  alien,  and 
cannot  inherit  in  Texas. 

McKinney  r.  Saviego,  18  How.,  235. 
430 


CHAP.  VII.]  TERRITOEIAL    CHANGE.  [§  188. 

A  person  born  in  Texas  and  removing  therefrom  before  the  separa- 
tion from  Mexico  remains  a  citizen  of  Mexico,  though  a  minor  when 
the  separation  took  phice. 

Jones  V.  McMasters,  20  How.,  8. 

On  the  conquest  of  one  nation  by  another,  and  the  subsequent  sur- 
render of  the  soil  and  change  of  sovereignty,  those  of  the  inhabitants 
who  do  not  remain  and  become  citizens  of  the  victorious  sovereign,  but, 
on  the  contrary,  adhere  to  their  old  allegiance,  and  continue  in  the 
service  of  the  vanquished  sovereign,  dei^rive  themselves  of  protection 
or  security  to  their  property,  except  so  far  as  it  may  be  secured  by 
treaty. 

U.  S.  r.  Kepentigny,  5  WaU.,  211. 

After  delivery  the  relations  of  the  inhabitants  of  ceded  territory  to 
their  former  sovereign  are  dissolved,  but  not  their  relations  to  each 
other. 

U.  S.  V.  Repeutigny,  5  Wall.,  211.     Su2)ra,  §^3ff. 

A  transfer  of  territory  from  one  nation  to  another  transfers  the  alle- 
giance of  those  who  remain  in  it  (1  Pet.,  542) ;  but  this  applies  di- 
rectly only  to  the  natural-born  citizens.  The  contracting  parties  have 
the  right  to  contract  to  transfer  and  to  receive,  respectively,  the  alle- 
giance of  all  native-born  citizens;  but  the  naturalized  citizens,  who 
owe  allegiance  purely  statutory,  when  released  therefrom,  are  remitted 
to  their  original  status. 

Tolnn  V.  Walkinshaw,  McAll.,  186.     Stq)ra,  ^  3  jf. 

By  article  3  of  the  convention  with  Great  Britain  of  1818,  it  was 
agreed  that  the  Oregon  Territory  should  "be  free  and  open  to  the  ves- 
sels, citizens,  and  subjects  of  the  two  powers,"  which  convention  was 
continued  in  force  until  the  convention  of  184G.  It  was  held,  in  refer- 
ence to  a  question  of  nationality,  that  during  the  period  of  such  joint 
occupation  the  country,  as  to  British  subjects  therein,  was  British  soil, 
and  subject  to  the  jurisdiction  of  the  King  of  Great  Britain;  but  as  to 
citizens  of  the  United  States  it  was  American  soil,  and  subject  to  the 
jurisdiction  of  the  United  States. 

McKay  v.  Campbell,  2  Sawyer,  119.     Siqyra,  U  171  ff. 

A  per.son  born  in  1823  at  Fort  George,  Oregon  Territory,  of  a  British 
father  and  an  Indian  mother,  was  held  to  be  born  either  a  British  sub- 
jects or  an  Indian,  but  not  in  any  aspect  a  citizen  of  tbe  United  States. 
McKay  v.  Campbell,  2  Sawyer,  118;  5  Am.  L.  T.    Infra,  $  100;  supra,  $$  173^". 

All  persons  who  were  citizens  of  Texas  at  tlie  date  of  annexation, 
viz,  I)('cein])er  29,  1845,  became  citizens  of  the  United  States  by  virtue 
of  the  collective  naturalization  effected  by  the  act  of  that  date. 

13  Op.,  397,  Akermau,  1871.     See  avpra,  J  5. 

Ab  to  annexation  of  Texas,  nee  aupra,  $^  58,  72,  154. 

431 


§  181).]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGK.    [CHAI'.VII. 

VIII.  moTLCTiox  or  aoiJinyMEXT. 

(I)  Gkantku  to  cniZKNS  aukoau. 
§  180. 

On  this  sulyoct  see  inj'ra,  cliap.  ix,  whore  claiiiis  on  foreign  GovtriniuMits  tor 

injuries  to  citizens  are  discussed. 
As  to  luquiries  from  foreign  Governnunts,  sec  Ai>i).,  vol.  iii,  ^  189. 

"  Siiimnury,  saiignine,  or  uiulue  ]»inii.slimeiit"  of  citizeusol"  the  United 
States  cbaiged  with  political  otleiices  in  ]Mexico  will  be  the  subject 
of  grave  expostulation  with  the  Mexican  Government. 

Mr.  Webster.  Sec.  of  State,  to  Mr.  Ellis,  Jan.  3.  1842.     MSS.  Inst.,  Mcs.     Ibid., 
Feb.  26,  WA2.     Infra,  §  2:50. 

"  Citzens  of  the  United  State  whilst  residing  in  Peru  are  subject  to 
its  laws  and  the  treaties  existing  between  the  parties,  and  are  amen- 
able to  its  courts  of  justice  for  any  crimes  or  offenses  which  they  may 
commit.  It  is  the  province  of  the  judiciary  to  construe  and  administer 
the  laws  ;  and  if  this  be  done  promptly  and  impartially  towards  Ameri- 
can citizens,  and  with  a  just  regard  to  their  rights,  they  have  no  cause 
of  complaint.  In  such  cases  they  have  no  right  to  appeal  for  redress 
to  the  diplomatic  representative  of  their  country,  nor  ought  he  to  regard 
their  complaints.  It  is  only  where  justice  has  been  denied  or  unreason- 
ably delayed  by  the  courts  of  justice  of  foreign  countries,  where  these 
are  used  as  instruments  to  oppress  American  citizens  or  deprive  them 
of  their  just  rights,  that  they  are  warranted  in  appealing  to  their  Gov- 
ernment to  interpose.  No  such  circumstances  exist,  so  far  as  I  under- 
stand the  question,  in  the  case  of  Dr.  Korris,  which  was  the  subject  of 
]Mr.  Jewett's  j)rotest." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Osma,  Feb.  1,  1848.     MSS.  Notes,  Peru. 

In  the  British  and  Foreign  State  Papers  for  ]852-'o3,  vol.  42,  412,  is 
given,  under  title  of  correspondence  between  the  United  States  aud 
Great  Britain  respecting  the  imprisonment  of  Messrs.  Berger  and  Ryan 
for  treasonable  ])ractices  in  Ireland,  a  note  from  Lord  Palmerston  to 
Mr.  Bancroft,  September  20,  1848,  stating,  among  other  things,  that  "if 
there  be  any  citizens  of  the  United  States  who  have  chosen  this  period 
of  disturbance  for  visiting  Ireland,  for  innocent  purposes,  they  must  not 
be  surprised  if,  like  persons  whom  curiosity  may  lead  into  the  midst  of 
a  battle,  they  should  be  involved  into  the  sweep  of  measures  aimed  at 
men  of  a  different  description.  But  Iler  Majesty's  Government  will 
always  lament  that  mistakes  of  this  kind  should  happen  by  which  un- 
offending travelers  may  be  exposed  to  inconvenience,  and  the  utmost 
alacrity  will  at  all  time's  be  evinced  by  the  Irish  Government  to  rectify 
such  errors." 

As  to  iuter\-eution  in  such  cases,  eee  supra,  $  52;  infra,  ^  230. 

The  discrimination  against  persons  of  Irish  birth  returning  to  Ireland 
from  America,  by  which  such  j)ersons  are  subjected  to  peculiar  scrutiny 

432 


CHAP.  YII.]  PKOTECTION    OF    GOVERNilENT.  [§189. 

and  search,  is  an  offense  to  tlie  United  States  requiring  the  most  de- 
cisive protest. 

Mr,  Buchanan,  Sec.  of  State,  to  Mr.  Bancroft,  Dec.  18, 1848.    MSS.  lust.,  Gr. 
Brit. 

President  Polk's  message  of  December  28,  1848,  transmitting  a  re- 
port of  the  Secretary  of  State,  and  accompanying  papers,  in  relation  to 
the  imprisonment  of  American  citizens  in  Ireland,  is  given  in  House  Ex. 
Doc.  10,  30th  Cong.,  2d  sess. 

Arbitrary  and  capricious  action  on  the  part  of  the  governor-general 
of  Cuba  in  excluding  from  Cuba  citizens  of  the  United  States  will  be 
ground  for  diplomatic  interiiosition,  and  so  of  arbitrary  and  capricious 
exclusion  from  port  of  merchant  vessels  of  the  United  States. 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Barringer,  Feb.  4, 1853  ;  Mr.  Marcy  to  Mr.  Bar- 
ringer,  Apr.  19, 185.3.     MSS.  Inst.,  Spain. 

And  SO  of  arbitrary"  seizures  of  United  States  packet  steamers  on 
charge  of  breach  of  custom-house  regulations. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Sould,  Mar.  11,1854  ;  Mar.  17,1854;  Juuo  22, 

1854;  Aug.  16,  1854;  ihid. 
For  Black  ^Yar^ior  case  see  supra,  §  90. 

"  Every  nation,  whenever  its  laws  are  violated  by  anyone  owing  obe- 
dience to  them,  whether  he  be  a  citizen  or  a  stranger,  has  a  right  to  in- 
flict the  penalties  incurred  uj^on  the  transgressor  if  found  within  its 
jurisdiction.  The  case  is  not  altered  by  the  character  of  the  laws,  unless 
they  are  in  derogation  of  the  well-established  international  code.  No 
nation  has  a  right  to  supervise  the  municipal  code  of  another  nation  or 
claim  that  its  citizens  or  subjects  shall  be  exempted  from  the  operation 
of  such  code,  if  they  have  voluntarily  placed  themselves  under  it.  The 
character  of  the  municipal  laws  of  one  country  does  not  furnish  a  just 
ground  for  other  states  to  interfere  with  the  execution  of  these  laws 
even  upon  their  own  citizens  when  they  have  gone  into  that  country 
and  subjected  themselves  to  its  jurisdiction.  If  this  country  can  right- 
fully claim  no  such  exemption  for  its  native-born  or  naturalized  citizens, 
it  caifnot  claim  it  for  those  who  have  at  most  but  inchoate  rights  of 
citizens. 

"The  above  principle,  that  persons,  being  citizens  or  subjects  of  one 
state  and  having  violated  the  laws  of  another  state,  may  be  punished 
while  they  remain  under  or  are  fairly  brought  within  the  jurisdiction  of 
the  latter  state,  is  too  well  established  to  be  made  a  matter  of  serious 
controversy.  It  is  clearly  affirmed  in,  and,  indeed,  is  the  basis  of,  every 
extradition  treaty.  Each  contracting  party  agrees  to  deliver  up  to  the 
other  fugitive  offenders, — generally  including  its  own  citizens  as  well 
;is  strangers, — for  specified  offenses,  to  be  dealt  with  according  to  the 
laws  of  the  country  demanding  the  .surrender  of  them.  It  is  true  that 
there  are  .some  kinds  of  offenses  which  are  not,  and  ought  not  to  be,  in- 
( luded  in  extradition  treaties; — such,  for  instance,  as  are  called  political 
offcn.ses; — yet  because  one  nation  will  not  enter  into  a  compact  to  deliver 

s.  Mis.  102— vol,.  1 1 — 2s  .1.;:; 


§  189.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

such  oflViulers  to  nnolber,  tbat  does  not  justify  tbo  infercDce  that  if  sncli 
offeiulers  go  voluntarily  within  the  jurisdiction  of  the  country  whose 
laws  they  have  oU'euded  they  may  not  bo  rightfully  punished,  or  that 
they  can  claim  exemption  j'rom  punishment  if  they  were  citizens  of 
another  country  when  the  olleuse  was  committed,  or  had,  after  couimit- 
tiug  it,  acquired  another  nationality. 

'•The  country  whose  '  i)rotection'  is  invoked  (suinot,  it  is  conceived, 
properly  interpose  in  such  a  case  unless  the  municipal  law,  the  violation 
of  which  is  charged,  contravenes  some  right  of  such  country  acquired 
by  treaty  stipulations  or  otherwise.  The  i)rinci]>le  does  not  at  all  inter- 
fere with  the  right  of  any  state  to  protect  its  citizens  or  those  entitled 
to  its  protection  when  abroad  from  wrongs  and  injuries,  from  arbitrary 
acts  of  oppression  or  dei)rivation  of  ]>roperty,  as  contradistinguished 
from  penalties  and  punishments,  incurred  by  the  infraction  of  the  laws 
of  the  country  within  whose  jurisdiction  the  suflerers  have  ])laced  them- 
selves." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Jackson,  Jan.  10,  1854.     MSS.  Inst.,  Austria. 
See  infra,  ^  230. 

Under  the  treaty  with  Prussia  of  1828  "every  American  citizen  has 
the  incontestable  right  to  enter  the  Prussian  territories  and  there  remain 
undisturbed,  as  long  as  he  submits  'to  the  laws  and  ordinances  there 
prevailing.'" 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Wright,  May  12,  IS-'O.    MSS.  Inst.,  Prussia. 

And  so  as  to  the  treaty  with  Hanover. 

S.ame  to  same,  Dec.  9,  1859 ;  ihid. 

"The  opinions  of  the  President,  concerning  the  rights  and  duties  of 
the  United  States  connected  with  the  jirotection  of  our  citizens  and 
their  property  abroad,  are  distinctly  set  forth  in  that  letter  (of  July  25, 
1858,  to  General  Lamar),  and  have  since  undergone  no  change,  as  the 
Government  of  Nicaragua  has  been  informed.  In  laying  down  the 
principles  we  maintain,  it  is  said,  'The  United  States  believe  it  to  be 
their  duty,  and  they  mean  to  execute  it,  to  watch  over  the  persons  and 
property  of  their  citizens  visiting  foreign  countries,  and  to  intervene 
for  their  protection  when  such  action  is  justified  by  existing  circum- 
stances and  by  the  law  of  nations.' 

"In  addition  to  this  general  declaration,  applicable  in  all  countries, 
there  were  some  peculiar  principles  asserted,  arising  out  of  the  condi- 
tion of  Nicaragua  and  of  the  transit  route  from  ocean  to  ocean  across 
its  territory.  The  right  of  the  United  States  to  take  care  that  the  pub- 
lic contracts  made  with  our  citizens  for  the  construction  and  use  of  that 
route  of  intercommunication  are  faithfully  observed  was  explained  ami 
maintained,  and  so  far  as  the  legal  power  of  the  Executive  stands  will 
be  enforced,  if  necessary." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  IJody,  Mar.  :\  1800.     MSS.  Doni.  Lot.     Sec  irfra, 
^  230. 

434 


CHAP.  VII.J  PROTECTION    OF    GOVERNMENT.  [§  189. 

"  The  pretense  of  the  judge  on  the  trial  of  John  Warren,  not  dis- 
avowed by  Her  Majesty's  Government,  that,  although  a  duly  natural- 
ized citizen  of  the  United  States,  he  still  remains  a  subject  of  the  Queen 
of  Great  Britain,  amenable  in  that  country  to  laws  which  are  invalid 
there  against  native-born  citizens  of  the  United  States  has  awakened  a 
general  feeling  of  resentment  and  deeply  wounded  our  pride  of  sover- 
eignty. The  people  are  appealing  to  this  Government  throughout  the 
whole  country  from  Portland  to  San  Francisco  and  from  Saint  Paul  to 
Pensacola." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Adams,  Jan.  13, 1868.  MSS.  Inst.,  Gr.  Brit.  ; 
see  irtfra,  $  230. 

''Great  Britain  is  understood  to  acknowledge  that  this  Government 
maintains  its  neutrality  in  this  trial  (the  Fenian  insurrection)  with  due 
decision  and  energy.  The  maintenance  of  this  neutrality,  however,  is 
attended  with  so  much  difiQculty  and  inconvenience  as  to  entitle  us  to 
the  exercise  of  a  corresponding  justice  and  liberality  on  the  part  of  Great 
Britain.  As  naturalized  citizens  of  the  United  States,  Irishmen  and 
their  descendants  have  a  right  to  visit  Great  Britain,  and  to  be  safe  in 
their  persons  and  property  there  so  long  as  they  practice  due  submis- 
sion to  the  authority  of  Great  Britain,  the  same  as  native  citizens  of 
the  United  States.  When,  however,  a  naturalized  citizen  of  Irish  birth 
or  descent,  transiently  visiting  Great  Britain,  is  arrested  or  questioned 
under  the  acts  suspending  the  habeas  corjjus,  or  by  warrant  or  other 
form  of  complaint  in  judicial  proceedings,  and  thereupon  claims  the 
rights  of  citizens  of  the  United  States,  he  is  met  in  the  courts  of  that 
country  with  a  denial  of  the  validity  of  his  naturalization,  and  with  the 
assertion  that  his  allegiance  to  the  sovereign  of  Great  Britain  continues 
unbroken." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Johnson,  July  20, 1868.     MSS.  Inst.,  Gr.  Brit. 
As  to  denial  or  undue  discrimination  of  justice  abroad,  see  infra,  $$  230,  244. 

"  It  would  be  very  desirable  if  instructions  were  given  to  military  or 
other  officers  making  arrests  for  any  cause,  of  parties  claiming  to  be 
citizens  of  the  United  States,  requiring  such  officers  to  cause  the  nearest 
consular  officer  of  the  United  States  to  be  promptly  notified  of  the  arrest 
and  of  the  claim  of  the  party  to  American  citizenship." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Oct.  27,  1870.     MSS.  Inst.,  Spain. 

Imprisonment  and  detention  by  Germany,  in  violation  of  the  treaty 
between  the  two  powers,  of  a  German  naturalized  in  the  United  States, 
is  a  ground  for  a  diplomatic  claim  for  pecuniary  redress. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  Nov.  -Jl,  187G.  MSS.  Inst.,  Germ.  Mr. 
Evarta  to  Mr.  Whifo,  Juno  20,  1879;  ibid.  Same  to  same,  Aug.  27,  1879; 
ibid. 

And  so  as  to  compulsory  and  unwarranted  ejection  from  Germany. 

Mr.  EvartH,  Sec.  of  State,  to  Mr.  Everett,  Apr.  30,  1878.  MSS.  lu.st.,  Goiiu. 
See  infra,  $  20C). 

435 


§  189.]    CITIZENSUIP,  XATUKALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

"Ill  regard  to  your  obligations  iu  respect  to  Moorish  subjects  natiiral- 
izeil  here  who  may  return  to  Morocco,  I  have  to  remark  that  you  will, 
under  the  treaty  of  183C,  claim  for  them  the  same  privileges  and  immu- 
nities as  may  be  enjoyed  by  the  citizens  or  subjects  of  any  other  power 
who  also  may  have  been  natives  of  ]\Iorocco,  unless  the  Government  to 
which  citizens  or  subjects  may  owe  allegiance  shall  have  a  treaty  of 
naturalization  with  the  Emperor.  Tbo  United  States  has  no  sucli 
treaty." 

Mr.  Evarts,  Soc.  of   State,  to  Mr.  JIalbows,  Doc.  7,  1877.     MSS.  Inst.,  Barb. 

Powers. 
For  intervention,  nii(U'ij<iiut  resolution  of  Congress,  in  Condon's  case,  see  infra, 

$  230. 

''By  a  clause  of  the  instrument  (organizing  the  colony  of  the  island 
of  Ciare),  citizens  of  the  United  States  were  expressly  excluded  from 
being  members  of  that  colony.  In  reply  I  have  to  state  that  this  exclu- 
sion is  regarded  here  as  invidious  and  as  directly  at  variance  with  the 
third  article  of  the  treaty  of  1831,  which  stipulates  for  perfect  equality 
between  citizens  of  the  United  States  and  other  foreigners  who  may  visit 
or  reside  in  iSIexico.    *     •     * 

"  The  Mexican  law  forbidding  United  States  citizens  from  holding  real 
estate  in  that  country,  while  that  privilege  is  open  to  other  aliens,  may 
also  be  regarded  as  incompatible,  if  not  with  the  letter,  certainly  with 
the  spirit,  of  the  treaty,  the  obvious  purpose  of  which  was  to  provide 
for  equality  generally  between  our  citizens  and  other  foreigners  in  that 
Republic." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  Mar.  26,  1879.     MSS.  Inst.,  Mcx.     See 
supra,  5  154. 

If  the  meaning  of  the  action  of  the  Russian  Government  in  a  par- 
ticular case  "is  that  a  citizen  of  the  United  States  has  been  broken  u[) 
in  his  business  at  St.  Petersburg  simply  for  the  reason  that  he  is  a 
Jew,"  then  it  should  be  made  clear  to  the  Government  of  Russia  that 
"  the  religion  professed  by  one  of  its  citizens  has  no  relation  whatever 
to  that  citizen's  right  to  the  protection  of  the  United  States." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  Sept.  4,  16S0.     M.SS.  Inst.,  Russia. 
As  to  Eussiau  treatment  of  Jews,  see,  further,  Mr.  Blaine,  Sec.  of  State,  to  Mr. 

Foster,  June  22,  1881;  MSS.  Inst.,  Eussia.     Same  to  same,  July  29,  1881; 

same  to  Mr.  Hoffman,  Nov.  23,  1681 ;  Mr.  Frelingliuysen  to  Mr.  Hunt,  Dec. 

15,  1882 ;  ibid. 
As  to  intervention  iu  behalf  of  Jews,  see  supra,  ^  55. 

While  the  Government  of  the  United  States,  in  its  negotiations  with 
Russia,  insisted  that  American  citizens,  when  in  Russia,  should  be 
treated  alike,  without  distinction  of  creed,  the  Russian  Government 
maintained  that  under  its  treaty  with  the  United  States,  an  American 
Hebrew  is  subject  to  the  same  local  treatment  as  a  Russian  Hebrew. 

Mr.  Frelinghuysen,Sec.  of  State,  to  Mr.Noar,June  14,1882.     ScoMr.Davis  to 
Mr.  Krng,  Aug.  23, 1882.    MSS.  Dom.  Let.    Supra,  §  55, 

430 


CITAF.  VII.]  PROTECTION    OV    GOVERNMENT.  [§  180. 

"There  is  uo  treaty  between  tbe  United  States  aud  Russia  for  tbc 
protectiou  of  naturalized  citizens.  As  a  naturalized  American  citizen, 
jou  would,  if  provided  with  a  passport,  be  entitled  to  all  the  protection 
due  to  a  native-born  American  citizen.  This  does  not  imply  that  you 
would  be  free  from  molestation  should  you  return  to  your  native  coun- 
try, and  it  is  not  improbable  that  you  would  be  subjected  to  various 
inconveniences,  perhaps  to  arrest.  In  this  case  every  effort  would  be 
exerted  in  your  behalf  by  the  diplomatic  and  consular  oflicers  of  the 
United  States,  though  it  is  impossible  to  say  with  what  result.  You 
yourself  must,  of  course,  be  the  judge  of  the  advisability  of  the  visit  you 
contemplate." 

Mr.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Newdiug,  Feb.  14,  1883.    MSS.  Doni.  Let. ; 
Infra,  $  230. 

A  discrimination  against  American  citizens,  as  such,  practicing  medi- 
cine in  Syria,  will  be  tbe  subject  of  protest  to  the  Turkish  Government. 

Mr.  Frelingliuyseu,  Sec.  of  State,  to  Mr.  Wallace,  Jnue  25.  1883,  Aug.  20,  1883. 
MSS.  lust.,  Turkey.     Same  to  same,  Mar.  27, 1884;  ibid. 

Undeserved  indignities  inflicted  by  French  authorities  on  a  natural- 
ized citizen  of  the  United  States,  traveling  with  a  passport,  on  a  proc- 
ess for  compelling  him,  as  a  Frenchman  by  birth,  to  perform  military 
service,  will,  though  followed  by  a  release,  be  ground  for  diplomatic 
appeal  to  France  for  redress. 

Mr.  Frelingliuyseu,  Sec.  of  State,  to  Mr.  Morton,  Mar.  25,  1884.     MSS.  Inst., 
France.     See  infra,  $  230. 

"  The  United  States  nevertheless  contend  that  such  special  laws  [as 
to  persons]  exceptional  in  character  and  harsh  in  operation,  dispens- 
ing with  all  the  safeguards  of  personal  security,  cannot  with  propriety 
be  applied  to  citizens  of  the  United  States  who  maybe  peacefully  so- 
journing or  traveling  in  any  part  of  Her  Majesty's  dominions.  And 
the  Government  of  the  United  States  must  contend,  and  it  cannot  be- 
lieve that  Her  Majesty's  Government  will  deny  the  contention,  that 
even  such  harsh  laws  must  be  administered  with  due  regard  to  a  citi- 
zen's dignity  and  will  not  justify  chaining  a  free  citizen  to  culprits  and 
repeatedly  marching  him  through  the  public  streets  and  holding  him 
for  days  as  a  culprit  in  prison  without  charge  or  trial." 

Mr.  Frclinghuyscn,  Sec.  of  State,  to  Mr.  Lowell,  Oct.  23,  1884.     MSS.  Inst.,  Gr. 

Brit. 
George's  ca!5e  is  diacnssed  iu  Tuust.all's  case,  infra,  $  241. 

"The  Government  of  the  United  States  recognizes  the  right  of  Mex- 
ico to  prescribe  the  reasonable  conditions  upon  which  foreigners  may 
reside  within  her  territory,  and  the  duty  of  American  citizens  there  to 
obey  the  munici])al  laws;  but  tho.se  laws  cannot  disturb  or  all'ect  the 
relationship  existing  at  alTtimes  between  this  Government  and  one  of 
its  citizens.     The  duty  is  always  incumbent  ujjon  a  Government  to  ex- 


§  189.]    CITIZENSHIP,  NATURALIZATION,  AND  ALlfiNAGE.    [ciIAP.  Vll. 

ercise  a  just  aiul  proper  guardiausLip  over  its  citizeus,  whether  at  homo 
or  abroad.  A  municipal  act  of  another  state  cannot  abridge  this  duty, 
nor  is  such  an  act  countenanced  by  the  hiw  or  usage  of  nations." 

Mr.  Froliugbuyscn,  Sec.  of  State,  to  Mr.  Morgan,  Feb.  17,  1885.     MSS.  Inst., 
Mex.     Sco  supra,  $  172a;  infra,  $  2:?0.     App.,  vol.  iii,  §  172o. 

"While  it  may  not  be  anticipated  that  judicial  proceedings  against 
aliens  in  British  jurisdiction  will  be  conducted  otherwise  than  in  strict 
confonnity  to  law,  and  with  every  constitutional  guarantee  for  the  fair 
trial  and  defense  of  the  accused,  yet  it  is  the  clear  right  and  duty  of  this 
Government,  and,  indeed,  of  any  Government,  to  satisfy  itself  that  its 
citizens  enjoy,  whilst  temporarily  in  foreign  lands,  every  right  and 
privilege  before  the  bar  of  justice,  and  to  see  that  they  are  allowed  the 
fullest  means  of  defense.  If,  therefore,  you  should  iind  that  any  citi- 
zen of  the  United  States,  accused  svithin  British  jurisdiction  of  the 
commission  of  crime,  should,  by  reason  of  poverty  or  friendlessness,  or 
any  other  cause,  not  be  in  enjoyment  of  all  the  means  of  defense  which 
the  law  assures  to  him,  it  is  expected  that  all  will  be  done  to  aid  him 
which  can  be  done  by  the  representatives  of  the  United  States.  No  ex- 
pense, however,  can  be  incurred  for  counsel  or  otherwise  without  the 
authorization  of  the  Dej)artment,  which  in  an  urgent  case  may  be  sought 
by  telegraph." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Lowell,  Apr.  10,  1885.    MSS.  Inst.,  Gr.  Brit. 

Discrimination  against  an  American  citizen  on  groundof  alienage,  by 
which  he  is  excluded  from  redress  in  courts  of  justice  for  injuries  in- 
flicted on  him  is  a  ground  for  diplomatic  interposition. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Phelps,  June  4,  1885.     MSS.  Inst.,  Peru. 

"It  is  a  rule  of  international  law  that  sovereigns  are  not  liable  in 
diplomatic  procedure  for  damages  to  a  foreigner  when  arising  from  the 
misconduct  of  agents  acting  out  of  the  range  not  only  of  their  real  but 
of  their  apparent  authority.  This  Government  could  not  admit  such  a 
demand  upon  it  on  the  part  of  any  foreign  power,  and  it  cannot  be  ex- 
pected to  make  such  a  demand  against  a  nation  with  which  it  treats  as 
an  equal  sovereign,  unless  it  has  acquired  by  treaty  the  right  to  do  so. 
But  this  view  of  the  matter  is  qualified  by  the  right  to  expect  that  when 
the  circumstances  of  the  case  warrant  it  the  Government  found  morally 
in  default  will  hasten  to  tender  proper  reparation  to  the  injured  party." 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Clark,  Aug.  17,  1885.     MSS.  Dom.  Let. 

"  Under  the  laws  of  Great  Britain,  a  remedy  exists  for  those  who  have 
been  subjected  to  unlawful  arrest ;  and  citizens  of  the  United  States  as 
well  as  subjects  of  Great  Britain  are  entitled  *  *  *  to  avail  them- 
selves of  that  remedy  in  the  regular  ordinary  courts  of  justice.  The 
same  rule  exists  and  is  enforced  in  the  United  States  with  reference  to 
the  subjects  of  Great  Britain. 

"The  case  in  which  this  Government  assumes  to  interfere  in  behalf 
of  one  of  our  citizens,  where  redress  may  ordinarily  be  had  in  the  courts 
43S 


CUAr.  YII.]  PROTECTION    OF    GOVERNMENT.  [§  189. 

of  the  coimtry  in  which  he  chiims  to  have  been  wronged,  is  that  of  a  de- 
nial to  him  bj'  those  courts  of  the  usual  means  of  redress.  For  the  pres- 
ent, therefore,  Mr.  Davis,  who  has  never  resorted  to  the  courts  of  Great 
Britain,  must  be  remitted,  so  far  as  recovery  of  pecuniary  indemnifica- 
tion from  the  authors  of  the  trespass  is  concerned,  to  the  usual  remedies 
to  which  persons  in  his  situation  are  by  the  laws  of  Great  Britain  enti- 
tled. 

"  If,  however,  he  does  not  see  fit  to  press  his  claim  for  pecuniary  dam- 
ages in  the  judicial  tribunals  of  Great  Britain  against  the  parties  who 
may  have  been  guilty  of  trespassing  upon  his  rights,  it  may  be  proper 
to  consider  the  question  of  asking  that  Government  for  an  explanation, 
and,  if  warranted,  an  expression  of  regret." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Gebliard,  Sept.  9,  1685.     MSS.  Dom.Let. 

"After  reading  the  telegrams  and  dispatches  (copies  of  which  I  in- 
close for  your  information)  of  Mr.  J.  Harvey  Brigham,  United  States 
consul  iat  El  Paso,  Mexico,  and  also  your  isTo.  206,  dated  the  8th  instant, 
relating  to  the  case  of  Mr.  A.  K.  Cutting,  I  telegraphed  you  on  the  19th 
instant  as  follows : 

"  'You  are  instructed  to  demand  of  the  Mexican  Government  the  in- 
stant release  of  A.  K.  Cutting,  a  citizen  of  the  United  States,  now  un- 
lawfully imprisoned  at  Paso  del  Xorte.' 

"  By  the  documents  before  me  the  following  facts  appear : 

"  On  June  18  last  A.  K.  Cutting,  a  citizen  of  the  United  States,  who 
for  the  preceding  eighteen  months  had  been  a  resident  'off  and  on,'  of 
Paso  del  Norte,  Mexico,  and  as  to  whose  character  for  respectability 
strong  evidence  has  been  adduced,  published  in  a  newspaper  of  El  Paso, 
Tex.,  a  card  commenting  on  certain  proceedings  of  Emigdio  Medina,  a 
citizen  of  Mexico,  with  whom  Mr.  Cutting  has  been  in  controversy.  For 
this  publication  Mr.  Cutting  was  imprisoned  on  the  22d  of  June  last,  at 
El  Paso  del  Xorte,  in  Mexico.  *  *  *  But  the  paper  was  not  published 
in  ]\Iexico,  and  the  proposition  that  Mexico  can  take  jurisdiction  of  its 
author  on  account  of  its  publication  in  Texas  is  wholly  inadmissible 
and  is  peremptorily  denied  by  this  Government.  It  is  equivalent  to 
asserting  that  Mexico  can  take  jurisdiction  over  the  authors  of  the  va- 
rious criticisms  of  Mexican  business  operations  which  appear  in  the 
newspapers  of  the  United  States.  If  Mr.  Cutting  can  be  tried  and  im- 
prisoned in  Mexico  for  publishing  in  the  United  States  a  criticism  on  a 
Mexican  business  transaction  in  which  he  was  concerned,  there  is  not 
an  editor  or  publisher  of  a  newspaper  in  the  United  States  who  could 
not,  were  he  found  in  Mexico,  be  subjected  to  like  indignities  and  in- 
juries on  the  same  ground.  To  an  assumption  of  such  jurisdi(;tion  by 
Mexico  neither  the  Government  of  the  United  States  nor  the  govern- 
ments of  our  several  States  v.ill  submit.  They  will  each  mete  out  duo 
justice  to  all  olirnses  Committed  in  their  respective  juris(li(;tions.  Tlicy 
will  not  i)ermit  that  this  prerogative  shall  in  any  degree  be  usiii  pcd  by 

430 


§  189.]   crnzENSiiiP,  naturalization,  and  alienage.  [riiAr.  vir. 

Mexico,  uor,  asiilo  IVoui  the  raot  of  the  exelii.siveiie.ss  of  their  juiisdic- 
tiou  over  acts  doue  within  their  own  boundaries,  will  they  i)ermit  a  citi- 
zen of  the  United  States  to  be  called  to  account  by  Mexico  lor  acts  done 
by  biiu  within  the  boundaries  of  the  United  States.  On  this  ground, 
therefore,  you  will  demand  ^h-.  Cutting's  release. 

"  But  there  is  another  ground  on  which  this  demand  may  with  equal 
positiveness  be  based.  By  the  law  of  nations  no  punishment  can  be 
inflicted  by  a  sovereign  on  citizens  of  other  countries  unless  in  con- 
Ibrmity  with  those  sanctions  of  justice  which  all  civilized  nations  hold 
in  common. 

"Among  these  sanctions  are  the  right  of  having  the  facts  on  which 
the  charge  of  guilt  was  made  examined  by  an  impartial  court,  the  expla- 
nation to  the  accused  of  these  facts,  the  opportunity  granted  to  him  of 
counsel,  such  delay  as  is  necessary  to  prepare  his  case,  permission  in  all 
cases  not  capital  to  go  at  large  on  bail  till  trial,  the  due  production 
under  oath  of  all  evidence  prejudicing  the  accused,  giving  him  the 
right  to  cross-examination,  the  right  to  produce  his  own  evidence  in 
exculpation,  release  even  from  temporary  imprisonment  in  all  cases 
where  the  charge  is  simply  one  of  threatened  breach  of  the  peace,  and 
where  due  security  to  keep  the  peace  is  tendered.  All  these  sanctions 
were  violated  in  the  present  case.  Mr.  Cutting  was  summarily  impris- 
oned by  a  tribunal  whose  partiality  and  incompetency  were  alike  shown 
by  its  i^roceedings.  He  was  refused  counsel ;  he  was  refused  an  inter- 
preter to  explain  to  him  the  nature  of  the  charges  brought  against 
him  5  if  there  was  evidence  against  him  it  was  not  produced  under  oath, 
with  an  opportunity  given  him  for  cross-examination  ;  bail  was  refused 
to  him ;  and  after  a  trial,  if  it  can  be  called  such,  violating,  in  its  way, 
the  fundamental  sanctions  of  civilized  justice,  he  was  cast  into  a  'loath- 
some and  filthy  '  cell,  where,  according  to  one  of  the  aflQdavits  attached 
to  Mr.  Brigham's  report,  'there  are  from  six  to  eight  other  prisoners, 
and  when  the  door  is  locked  there  are  no  other  means  of  ventilation ' — 
an  adobe  house,  almost  air-tight  with  a  'dirt  Hoorj'  he  was  allowed 
about '8.J  cents  American  money  for  his  subsistence;'  he  was  'not 
furnished  with  any  bedding,  not  even  a  blanket.'  In  this  wretched 
cell,  subjected  to  pains  and  deprivations  which  no  civilized  Goverment 
should  permit  to  be  inflicted  on  those  detained  in  its  prisons,  he  still 
languishes,  and  this  for  an  act  committed  in  the  United  States,  and  in 
itself  not  subject  to  prosecution  in  any  humane  system  of  jurispru- 
dence, and  after  a  trial  violating  the  chief  sanctions  of  criminal  pro- 
cedure. 

"  These  circumstances  you  will  state  as  giving  an  additional  basis, 
a  basis  which,  if  it  be  established,  this  Government  will  not  permit  to 
be  questioned,  for  the  demand  for  Mr.  Cutting's  immediate  release." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  July  20,  1886.     MSS.  Inst.  Mex. ; 
Senate  Ex.  Doc.  224,  49th  Coug.,  1st  Ress. ;  For.  Rel.,  1886.     See  further  as 
to  Cutting's  case,  suj>rc.,  ^  15. 

440 


CiTAr.  vir.'J  protection  of  government.  [§  189. 

"Since  my  ^o.  221,  of  the  20tli  instant,  I  Lave  received  no  further 
communication  from  Mr.  Brigham,  consul  at  El  Paso,  nor  from  yourself, 
in  connection  with  the  imprisonment  of  Mr.  A.  K.  Cutting  by  Mexican 
authority. 

"  On  Saturday  last,  the  24:th  instant,  I  was  called  upon  by  Mr.  Eo- 
niero,  the  minister  from  Mexico,  at  this  capital,  in  relation  to  the  case 
referred  to. 

"Mr.  Romero  j^roduced  to  me  the  Mexican  laws,  article  186,  whereby 
jurisdiction  is  assumed  by  Mexico  over  crimes  committed  against  Mexi- 
cans within  the  United  States  or  anj^  other  foreign  country ;  and  under 
this  he  maintained  the  publication  of  a  libel  in  Texas  was  made  cogni- 
zable and  punishable  iu  Mexico.  And  thus  Mr.  Cutting  was  assumed 
to  be  properly  held. 

"  This  claim  of  jurisdiction  and  lawful  control  by  Mexico  was  per- 
emptorily and  positively  denied  by  me,  and  the  statement  enunciated 
that  the  United  States  would  not  assent  to  or  permit  the  existence  of 
such  extraterritorial  force  to  be  given  to  Mexican  law,  nor  their  own 
jurisdiction  to  be  so  usurped,  or  their  own  local  justice  to  be  so  vicari- 
ouslj'  executed  by  a  foreign  Government. 

"  In  the  absence  of  any  treaty  of  amity  between  the  United  States 
and  Mexico  providing  for  the  trial  of  the  citizens  of  the  two  countries 
respectively,  the  rules  of  international  law  would  forbid  the  assumption 
of  such  power  by  Mexico  as  is  contained  in  the  Penal  Code,  article  18G, 
above  cited.  The  existence  of  such  power  was  and  is  denied  by  the 
United  States. 

"Mr.  Eomero  informed  me  that  the  local  or  State  jurisdiction  over 
Cutting's  case  did  not  allow  interference  by  the  National  Government 
of  Mexico  in  the  matter,  and  that  it  was  this  conflict  that  had  induced 
delay  in  responding  to  the  demand  of  this  Government  for  Mr.  Cut- 
ting's release. 

"  Mr.  Eomero  finally  assured  me  that  I  might  rely  confidently  upon 
Mr.  Cutting's  release  iu  a  very  short  time,  and  that  there  would  be  no 
doubt  about  the  compliance  of  his  Government  with  the  demand  made 
through  you. 

"  I  communicated  these  facts  to  you  in  order  to  give  you  a  full  com- 
prehension of  the  case  as  it  appears  here,  and  the  disposition  of  the 
Mexican  Government,  as  here  expressed. 

"  There  was  a  more  extended  conversation  on  my  part  with  Mr.  Eo- 
mero on  the  general  subject  of  the  treatment  by  the  Mexican  authori- 
ties of  American  citizens,  and  cases  affecting  their  property  and  inter- 
ests. 

"  I  stated  to  him  personally  and  at  aomc  length  the  single  voice  that 
had  come  to  this  Department  from  Mr.  Foster,  Mr.  Morgan,  and  your- 
self, in  which  a  dechiration  was  made  of  the  hopelessness  of  obtaining 
justice  to  our  citizens  iu  cases  where  they  had  been  wronged  l>y  flie 
oflicials  and  Government  of  Mexico. 


§  180.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [cHAP.  VlL 

"  I  also  called  liis  attention  to  the  avowed  policy  and  action  of  I\Ir. 
Mariscal  of  compelling  all  claims  wberein  the  Government  of  Mexico 
was  sought  to  be  held  liable  for  tortious  proceedings  to  be  tried  and  de- 
cided in  tribunals  of  her  own  creation  and  under  her  sole  control,  whose 
judgments,  he  claimed,  should  be  held  final  and  conclusive  against  citi- 
zens of  the  United  States. 

"  As  this  pretension  of  exclusive  control  was  now  under  considera- 
tion and  the  subject  of  correspondence,  notably  in  the  case  of  the 
Rebecca,  I  stated  merely  that  the  United  States  did  not  accept  the 
judgments  of  INIexican  tribunals  in  cases  where  IVIexico  was  a  party  to 
the  dispute  to  be  binding  upon  the  United  States. 

"  I  passed,  however,  to  the  broader  view  of  the  necessity  of  adminis- 
tering international  laws  in  a  spirit  of  amity,  comity,  and  justice;  that 
these  were  the  wise  and  true  paths  of  peaceful  government,  and  that 
the  alternatives  of  reprisal  and  force  were  the  last  and  most  unsatis- 
fiictory  resorts. 

"  Mr.  Eomero  is  too  well  convinced  to  make  my  renewed  avowal 
necessary  that  nothing  inconsistent  with  the  self-respect,  honor,  and 
prosperity  of  Mexico  is  desired  or  intended  by  the  United  States,  and 
that  it  was  in  the  interest  of  Mexico  even  more  than  of  the  United  States 
that  no  friction  or  exasperation  should  be  permitted  in  the  intercourse 
of  the  two  Governments  and  of  their  inhabitants  ;  that  to  avoid  all  such 
irritation  or  the  straining  of  our  friendl^^  relations  it  is  essential  that  a 
spirit  and  readiness  to  redress  wrongs  and  enforce  equitable  settle- 
ments of  matters  of  difference  should  be  constantly  and  practically 
manifested. 

"I  am  persuaded  of  the  good  intent  of  Mr.  llomero  towards  this 
Government,  and  believe  him  also  to  be  patriotically  faithful  to  his  own. 
From  him  I  have  assurances  that  a  desire  to  respond  in  a  friendly  and 
conciliatory  spirit  influences  the  present  Mexican  administration, 

"  And  if  this  be  the  true  state  of  affairs,  it  can  be  readily  demonstrated, 
and  all  questions  of  conflicting  interests  and  opinions  now  under  con- 
sideration diplomatically  between  the  two  Governments  can  without 
difficulty  be  equitably,  honorably,  and  satisfactorily  adjusted." 

Same  to  same,  July  27,  1886;  ibid.  See  infra,  $  230.  On  the  subject  of  non- 
jurisdiction  of  crimes  committed  by  foreigners  abroad,  see  Dana's  Wheaton, 
$  115. 

"  In  my  Xo.  224,  of  the  23d  instant,  I  stated  that,  in  the  opinion  of 
this  Department,  the  documents  forwarded  by  you  in  respect  of  Messrs. 
Gaskill  and  Ward  were  such  as  to  give  the  Department  no  ground  to 
take,  by  way  of  diplomatic  intervention,  exception  to  the  decision  of  the 
Mexican  tribunal  that  the  evidence  adduced  against  them  was  sufficient 
to  hold  them  for  trial.  This  instruction  was  forwarded  to  you  on  the 
24th  instant.  Since  then  I  have  had  brought  to  my  attention  a  letter 
received  from  the  Hon.  Milo  White,  a  member  of  Congress  from  Minne- 
sota, dated  tlie  23d  instant,  inclosing  a  statement  from  Messrs.  Gaskill 
442 


CliAP.  Vn.j  PROTECTION    OF    GOVEKNMENT.  [y^  180. 

and  Ward,  giviug  the  case  a  new  aspect.  It  is  tbereiu  alleged  that  in- 
stead of  Mr.  Gaskill  being  in  hostile  relations  with  Mr.  Hanson,  Mr. 
Gaskill  was,  by  a  will  unrevoked  at  Mr.  Hanson's  death,  Mr.  Hanson's 
executor ;  that  he  (Mr.  Gaskill),  being  a  resident  of  Carapo,  Cal.,  having 
been  i)ostmaster  there  for  twelve  years  and  justice  of  the  peace  for  ten 
years,  was  selected  by  Mr.  Hanson  to  take  charge  of  his  general  business 
interest,  which  Mr.  Hanson  was  unwilling  to  put  under  Mexican  super- 
vision ;  that  Messrs.  Gaskill  and  "Ward  have  now  been  kept  in  prison 
for  eleven  months,  without  information  of  the  evidence  against  them, 
and  that  they  have  been  approached  since  their  imprisonment  by  Mex- 
ican officials  with  offers  from  which  it  is  to  be  inferred  that  the  object 
of  the  prosecution  is  to  obtain  possession  of  Mr.  Hanson's  estate. 

"  Under  these  circumstances,  I  instruct  you  to  call  upon  the  Mexican 
Government  to  direct  that  the  prosecution  against  Messrs.  Gaskill  and 
Ward  be  brought  at  once  to  trial,  and  that  the  i)roceedings  should  be 
conducted  in  such  a  way  as  to  give  the  accused  in  advance  a  statement 
of  the  witnesses  to  be  produced  against  them  and  the  opportunity  of 
cross-examining  these  witnesses  face  to  face  on  trial,  and  of  producing 
witnesses  on  their  behalf  in  defense.  It  will  be  proper  also  to  state 
that  the  trial  will  be  watched  by  this  Government  with  interest  and 
close  attention,  so  that  the  Department  will  be  informed  if  there  is  any 
action  taken  on  such  trial  at  variance  with  the  rules  of  justice  acknowl- 
edged in  common  by  Mexico  and  ourselves." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jaclvson,  July  26,  1886.     MSS.  Inst.,  Mex. 

"When  the  diplomatic  agent  is  satisfied  that  an  applicant  for  pro- 
tection has  aright  to  his  intervention,  he  should  interest  himself  in  his 
behalf,  examining  carefully  into  his  grievances.  If  he  finds  that  the 
complaints  are  well  founded,  he  should  interpose  firmly,  but  with  cour- 
tesy and  moderation  in  his  behalf." 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 

"Abuses  which  have  heretofore  occurred  in  granting  protection  from 
the  local  authority  in  eastern  countries,  and  especially  in  the  Turkish 
dominions,  to  persons  who,  in  the  opinion  of  this  Department,  had  no 
claim  thereto,  render  it  advisable  that  the  legations  and  consulates  there 
should  once  in  six  months  report  the  number,  names,  and  occupations 
of  the  per.sons  to  whom  during  the  six  months  preceding,  such  protec- 
tion may  have  been  given,  or  by  whom  it  may  have  been  claimed.  Such 
report  will  in  future  l)e  expected  to  be  made  at  the  beginning  of  every 
January  and  July.  It  is  believed  that  sound  policy  dictates  tiie  utmo.st 
scrutiny  and  caution  in  extending  the  protection  of  this  Government 
to  any  persons  abroad  not  citizens  of  the  United  States.  This  policy, 
scrupulously  adhered  to  is  apt  to  afford  more  efficient  protection  to 
tho.se  to  wliom  it  is  really  due.  Such  i)rotection  should  in  no  event  bo 
given  to  aliens  not  actually  in  discharge  of  ollicial  duty  under  the  di- 
rection of  the  resi)ective  diplomatic  agents  and  consuhir  ollicers  or  em- 
pk)yed  in  their  dorncstii;  S('r\ice,  or  when  it  will  oj)eiate  to  screen  the 
holder  Irom  prosecution  lor  otfenses  against  the  laws  of  the  country,  or 
wIkmi  reasoiiabh;  ground  exists  for  objection  by  the  (lovenmient.  No 
instrument  in  the  nature  of  a  passport  should   he  issued  to  ali(^ns  thus 

443 


§  ISD.J     CITIZEN8IirP,  NATri{ALl/ATION,  AND  ALIENAGE.    (ciIAr.  VIl. 

protected;  it  will  be  sullicieiit  to  j;iant,  wlieu  necessary,  ii  ceititicato 
setting  I'oitli  their  n'lation  and  «liities  !n  conneetion  with  the  legation  or 
eonsnlate.-' 

J  bid. 

As  to  riglit  of  asylum  soo  siq)ra,  ^  101. 

A  correspondence  with  Great  Ihilain  concerning  the  arrest  and  ini- 
])risonnient  of  American  citizens  in  Ireland,  in  1.S4S,  will  l)e  found  in 
JJrit.  and  For.  St.  Pap.  lor  lS5(;-'57,  vol.  17,  IL'L'L'. 

As  to  arrest  of  nuturalizetl  citizeus  of  the  United  States  in  Great  Britain  and  Ire- 
land, sec  report  of  Acting  Sec.  of  State,  F.  W.  Seward,  Mar.  14,  1S(>8,  Senate 
Ex.  Doc.  4'2,  40tli  Cong.,  2d  scss.  ;  House  Ex.  Doc.  10,  40tli  Cong.,  Istsess. ; 
House  Ex.  Doc.  (iG,  40th  Cong.,  3d  sess.;  Senate  Mis.  Doc.  141,  4l8t  Cong., 
2d  sess.  ;  House  Ex.  Doc.  170,  41st  Cong.,  2d  sess. ;  House  Rep.  342,  43d 
Cong.,  Istsess.  ;  Brit,  and  For.  St.  Tap.,  18G7-'(iri,  vol.  .'')8;  18G9-'70.  vol.  00. 

The  following  docnmcjit  may  be  referred  to  in  the  same  relation: 

McSweeny,  Daniel,  iniprisonment  in   Ireland.     President's  message,  Mar.  20, 

1832,  Senate  Ex.  Doc.  139,  47th  Cong.,  Ist  sess. 
McSweeny,  Daniel,  resolution  of  Senator  Voorhees  ceusuriug  State  Department 

for  its  conduct  in  connection  with,  Apr.  3,  1882,  Senate  Mis.  Doc.  75,47111 

Cong.,  1st  sess. 
O'Donnell,  Patrick,  trial  and  execution  of,  by  British  Government.     Letter  from 

the  Secretary  of  State,  Jan.  8, 1884;  House  Ex.  Doc. 33,  48th  Cong.,  1st  sess. 

''  Another  privilege  of  a  citizen  of  the  United  States  is  to  demand  the 
care  and  protection  of  the  Federal  Government  over  his  life,  liberty, 
and  property  when  on  the  high  seas  or  within  the  jurisdiction  of  a  for- 
eign Government.  Of  this  there  can  be  no  doubt,  nor  that  the  right 
depends  upon  his  character  as  a  citizen  of  the  United  States.  The  right 
to  peaceably  assemble  and  petition  for  redress  of  grievances,  the  privi- 
lege of  the  writ  of  habeas  corpus,  are  rights  of  the  citizen  guaranteed 
by  the  Federal  Constitution.  The  right  to  use  the  navigable  waters  of 
the  United  States,  however  they  may  penetrate  the  territory  of  the  sev- 
eral States,  all  rights  secured  to  our  citizens  by  treaties  with  foreign 
nations,  are  dependent  upon  citizenship  of  the  United  States  and  not 
citizenship  of  a  State.  One  of  these  privileges  is  conferred  by  the  very 
article  under  consideration.  It  is  that  a  citizen  of  the  United  States 
can,  of  his  own  volition,  become  a  citizen  of  any  State  of  the  Union,  by 
a  hona  fide  residence  therein,  with  the  same  rights  as  other  citizens  of 
that  State.  To  these  may  be  added  the  rights  secured  by  the  thirteenth 
and  fifteenth  articles  of  amendment,  and  by  the  other  clau.se  of  the 
fourteenth,  licxt  to  be  considered." 

Miller,  J.;  Slaughter-Hou.se  cases,  IG  Wall.,  79,  80. 

Citizens  are  members  of  the  political  community  to  which  they  be- 
long. They  are  the  people  who  compose  the  community,  and-who,  in 
their  associated  capacity,  have  established  or  submitted  themselves  to 
the  dominion  of  a  Government  for  the  promotion  of  their  general  wel- 
f^ire  and  the  jirotection  of  their  individual  as  well  as  their  collective 
444 


CIIAr.  VII.]  rROTECTION    OF    GOVERNMENT.  [§  190. 

rights.    The  duty  of  a  Government  to  afford  i^rotection  is  limited  al- 
ways by  the  power  it  possesses  for  that  x)urpose. 
U.  S.  r.  CruiksLauk,  92  U.  S.,  54-2. 

A  nation  ought  not  to  interfere  in  the  causes  of  its  citizens  brought 
before  foreign  tribunals,  except  in  a  case  of  refusal  of  justice  or  of  pal- 
pable injustice. 

1  Op.,  53,  Eradford,  179-4. 

When  a  suitor  applies  to  a  foreign  tribunal  for  justice,  he  must  sub- 
mit to  the  rule  by  which  that  tribunal  is  governed. 
Jiid. 

In  regard  to  the  protection  of  our  citizens  at  home  and  abroad,  the 
laws  of  the  United  States  mate  no  distinction  between  native  and  nat- 
uralized citizens. 

9  Op.,  356,  Black,  1859. 

The  doctrine  that  a  naturalized  citizen  ought  to  be  protected  every- 
where, except  in  the  country  of  his  birth,  but  that  his  naturalization 
may  be  disregarded  there,  has  no  foundation,  except  the  untenable 
dogma  which  den;es  the  right  of  expatriation  without  the  consent  of 
his  native  country.  He  may  be  arrested  for  a  debt  or  a  crime,  but  he 
cannot  rightfully  be  punished  for  the  non-performance  of  a  duty  sup- 
posed to  grow  out  of  his  abjured  allegiance.  A  sovereign  cannot  excuse 
a  violation  of  public  law  by  a  iirovision  in  his  own  municipal  code.  A 
foreign  Government  cannot  excuse  the  arrest  of  a  naturalized  citizen  of 
the  United  States  on  the  ground  that  ho  emigrated  contrary  to  its  laws. 
IMd. 

If  a  citizen  of  the  United  States,  whether  native-born  or  naturalized, 
commit  a  crime  in  Great  Britain,  his  citizenship  will  not  protect  him 
from  the  penalty  of  his  crime;  nor  can  he  complain  that  he  is  not  ac- 
corded a  right  which  would  be  granted  to  a  British  subject  on  trial  for 
crime  in  the  United  States. 
12  Op.,  319,  Stanbcry,  1867. 

(2)  Right  may  nic  foufkited  uy  abandonment  of  citizenship. 

§190. 

See  on  this  topic  supra,  $  176. 

The  British  Government  acquiesced  in  the  execution  of  Arbuthnot  and 
Ambrister  by  General  Jackson  in  Florida  in  181S,  on  the  ground  that 
by  going  to  Morida  and  entering  intotlie  service  of  parties  engaged  in 
attacks  on  a  friendly  j)0\ver,  they  liad  forfeited  the  right  to  claim  the 
protection  of  the  Bntisli  Government. 

See  3  Scbouler'H  Hist.  U.  S.,  72  ff. 

As  to  Arl)iit1iiiot  and  AniliriHter,  see  fully,  infra,  5^210,  213,  3'l':'a. 

145 


§190.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

A  citizen  of  tbo  United  States  engaged,  when  in  a  foreign  country,  in 
attacks  on  the  Government  of  such  country  has  forfeited  bis  claim  to  the 
protection  of  his  own  Government. 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Peyton,  Jun.  G,  1612.     MSS.  Dom.  Lot. 

"  You  inform  us  that  many  American  citizens  have  gone  to  settle  on 
the  (Sandwich)  islands  ;  if  so  they  have  ceased  to  be  American  citizens. 
The  Government  of  the  United  States  must,  of  course,  feel  an  interest 
in  them  not  extended  to  foreigners,  but  by  the  law  of  nations  they  have 
no  right  further  to  demand  the  protection  of  this  Government.  What- 
ever aid  or  protection  might  under  any  circumstance  be  given  them, 
must  be  given,  not  as  a  matter  of  right  on  their  part,  but  in  consistency 
with  the  general  policy  and  duty  of  the  Government  in  its  relations  with 
friendly  powers. 

"  You  will  therefore  not  encourage  in  them,  nor  indeed  in  any  others, 
any  idea  or  expectation  that  the  islands  will  become  annexed  to  the 
United  States.  All  this,  I  repeat,  ■will  be  judged  of  hereafter  as  cir- 
cumstances and  events  may  require  by  the  Government  at  Washing- 
ton." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Severance,  July  14j  1851.  MSS.  lust., 
Hawaii. 

A  ])arty  who  took  out  in  Cuba  "letters  of  domiciliation,  in  order  to 
enable  him  to  transact  business,  such  as  a  Spanish  subject  or  a  domi- 
ciliated foreigner  can  alone  transact,  and  actually  swore  allegiance  to  the 
Spanish  Crown,"  is  precluded  from  calling  on  this  Government  for  aid 
in  a  claim  against  Spain. 

Rei)ort  to  President  by  Mr.  Webster,  Sec.  of  State,  Dec.  23,  1851 ;  6  Webster's 
Works,  523,524.  (Tbrasher's  case.  (See  iH/ra,  $$  203,229,240,257.)  This 
report  is  not  on  record  in  the  Department  of  State.) 

See  dispatch  of  Mr.  Owen,  consul,  &c.,to  Mr.  Webster,  Sec.  of  State,  Dec.  2, 
1851 ;  House  Ex.  Doc.  14, 32d  Cong.,  1st  sess. 

"  It  is  undoubtedly  true  that  an  American  citizen  who  goes  into  a 
foreign  country,  although  he  owes  local  and  temporary  allegiance  to  that 
country,  is  yet,  if  he  performs  no  other  act  changing  his  condition,  en- 
titled to  the  protection  of  Lis  own  Government;  and  if,  without  the  vi- 
olation of  any  municipal  law,  he  should  be  treated  unjustly,  he  would 
have  a  right  to  claim  that  protection ;  and  the  interposition  of  the 
American  Government  in  his  favor  would  be  considered  as  a  justifiable 
interposition.  But  his  situation  is  completely  changed  when,  by  his 
own  act,  he  has  made  himself  the  subject  of  a  foreign  i)Ower.  And  a 
person  found  residing  in  a  foreign  country  is  presumed  to  be  there  onlmo 
manendi^  or  with  the  purpose  of  remaining,  and  to  relieve  himself  of  the 
character  which  this  presumi)tion  fixes  upon  him  he  must  show  that  his 
residence  was  only  temporary,  and  accompanied  all  the  while  with  a 
fixed  and  detinite  intention  of  returning.  If  in  that  country  he  engages 
in  trade  and  business  he  is  considered  by  the  law  of  nations  as  a  mer- 
440 


CHAP.  VII.]  PROTECTION    OF    GOVERNMENT.  [§  190. 

chant  of  that  country ;  nor  is  the  presumption  rebutted  by  the  residence 
of  his  wife  and  family  in  the  country  from  which  he  came.  This  is  the 
doctrine  as  laid  down  by  the  United  States  courts.  And  it  has  been 
decided  that  a  Spanish  merchant  who  came  to  the  United  States  and 
continued  to  reside  here  and  carry  on  trade  after  the  breaking  out  of 
war  between  Spain  and  Great  Britain,  is  to  be  considered  an  American 
merchant,  although  the  trade  could  be  lawfully  carried  on  by  a  Spanish 
subject  only." 

Ibid. 

See,  further,  for  Mr.  Webster's  report  in  Thrasher's  case,  infra,  ^$  198,  203,  229, 
230,  244,  357.     See  supra,  §  170. 

"  Mr.  Webster,  Secretary  of  State,  refused  to  consider  as  entitled  to 
the  protection  of  the  United  States  a  native-born  citizen,  who,  after 
having  taken  out  letters  of  domiciliation  to  enable  him  to  transact  busi- 
ness in  Cuba  as  a  Spanish  subject  or  domiciled  foreigner,  was  charged 
with  being  implicated  in  the  Lopez  expedition  of  1850.  In  answer  to  a 
resolution  of  the  House  of  Representatives  he  said,  December,  1850 :  '  No 
man  can  carry  the  regis  of  his  national  American  liberty  into  a  foreign 
country  and  expect  to  hold  it  up  for  his  exemption  from  the  dominion  and 
authority  of  the  laws  and  sovereign  power  of  that  country  unless  he  be 
authorized  so  to  do  by  the  virtue  of  treaty  stipulations.'  Thrasher's 
case,  Cong.  Doc,  32d  Cong.,  1st  sess.,  House  Ex.  Doc.  10." 

Lawreuce's  Wheaton  (ed.  1863),  176;  3  Lawrence  com.  sur  droit  int.  138. 
As  to  Thrasher's  case,  see  further  Senate  Ex.  Doc.  5,  32d  Cong.,  1st  sess. ;  House 
Ex.  Doc.  10,  14,  32d  Cong.,  1st  sess.     Infra  $^  203, 229, 257. 

Persons  voluntarily  emigrating  from  the  United  States  to  take  up  a 
permanent  abode  in  a  foreign  land,  "  cease  to  be  citizens  of  the  United 
States,  and  can  have  after  such  a  change  of  allegiance  no  claims  to  pro- 
tection as  such  citizens  from  our  Government." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Kinney,  Feb.  4,  1855.     MSS.  Dom.  Let. 

"Though  there  is  no  law  forbidding  a  citizen  of  this  country  who 
goes  abroad  with  an  intention  to  settle,  to  resume  his  rights  as  a  citi- 
zen on  his  return,  how  long  soever  he  may  have  been  absent,  while  he  is 
under  the  jurisdiction  of  the  foreign  Government,  for  the  purpose  of 
carrying  on  business,  and  especiall}^  as  in  this  case,  for  engaging  in  min- 
ing operations,  he  must  be  presumed  to  have  been  satisfied  with  the 
ability  and  disposition  of  such  Government  to  protect  his  property  and 
his  person. 

"  It  is  essential  to  the  independence  of  nations,  and  to  the  public 
l)eace,  that  there  should  be  some  limit  to  the  right  and  duty  of  a  Gov- 
ernment to  interfere  in  behalf  of  persons  born  or  naturalized  within  its 
juri.sdiction,  who,  on  proceeding  to  a  foreign  country,  and  being  domi- 
ciliated there,  may  receive  injuries  from  the  authorities  thereof.  P>y  the 
general  law,  as  well  as  by  the  decisions  of  the  most  enlightened  judges 
i)0th  in  England  and  in  this  country,  a  neutral  engaged  in  business  in  an 
enemy's  country  during  war,  is  regarded  as  a  citizen  or  subject  of  that 
country,  and  Irs  property,  (Mpfiiicd  oti  tlic  liigli  seas,  is  liable  to  con- 

117 


^W90.]     CITlZEXSnir,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VI 1. 

(.lemuatiou  as  lawful  piizo.  No  sufficieut  reason  is  perceived  why  the 
same  rule  should  not  hold  good  in  time  of  peace,  also,  as  to  the  protec- 
tion due  to  the  property  and  persons  of  citizens  or  subjects  of  a  country 
domiciled  abroad." 

Mr.  Marcy,  Sec.  of  State,  to  Jlr.  Clay,  May  21,  185.%.     MSS.  lust.,  Peru. 

"Citizens  of  the  United  States,  who,  retaining  their  domiciles  in  the 
United  States,  are  temjiorarily  traveling  or  sojourning  in  New  Granada, 
are  to  be  regarded  as  entitled  to  the  protection  of  their  own  Govern- 
ment against  any  impositions  of  the  Government  there  for  its  sup- 
port and  maintenance.  But  citizens  of  the  United  States,  no  matter 
how  they  acquired  that  title,  who  have  gone  to  New  Granada,  become 
domiciliated  there,  and  arc  pursuing  business  orotherwi.se  living  there, 
without  definite  and  manifest  intentions  of  returning  to  this  country, 
are  subject  to  all  the  laws  of  New  Granada  affecting  property  or  ma- 
terial rights  exactly  the  same  as  the  citizens  of  New  Granada." 

Mr.  Soward,  Sec.  of  State,  to  Mr.  Burton,  Jan.  IG,  18G2.     MSS.  In.st.,  Colombia. 

"This  Government  owes  to  no  citizen  who  has  voluntarily  withdrawn 
his  person  and  property  from  the  country,  any  obligation  to  lend  him 
its  political  powers  to  influence  in  his  favor  the  adjudication  of  the  courts 
of  justice  of  the  country  in  which  he  proposes  to  reside,  in  the  trial  of 
questions  arising  upon  contracts  made  under  the  laws  of  that  country." 

Same  to  same,  Jan.  30,  18G3;  ibid. 

Citizens  of  the  United  States  who  were  concerned  in  the  insurrec- 
tion of  18G0  against  the  United  States,  and  who,  after  its  close,  decline 
to  return  to  their  allegiance,  and  go  into  the  service  of  a  foreign  country, 
are  not  entitled  to  the  interposition  of  the  Government  of  the  United 
States  for  redress  for  injuries  inflicted  on  them  in  such  foreign  country. 
Mr.  Seward,  Sec.  of  State,  to  Mr.  SuUivau,  Eel).  4,  1309.     JISS.  Inst.,  Colombia. 

Whether  a  citizen  of  the  United  States,  who  is  an  absentee  in  a  for- 
eign land  has  paid  his  internal-revenue  tax  in  the  United  States,  is  a 
matter  to  be  considered  in  determining  the  question  whether  such  citizen 
can  avail  himself  of  the  protection  of  the  United  States  against  the 
country  of  his  abode. 

Mr.  Fisb,  Sec.  of  State,  to  Mr,  Brauno,  Dec.  7,  1670  ;  MSS.  Dom.  Let.  Mr.  Fisli 
to  Mr.  Overmann,  Jan.  13,  1871 ;  Hid.  See  also  Mr.  Fisb  to  ^Ir.  Wilson, 
Dec.  5,  1870;  Mr.  Fisb  to  Mr.  Allen,  Jan.  18,  1871;  ibid. 

"An  application  has  been  made  to  this  Department,  in  a  letter  dated 
the  1st  ultimo,  and  signed  Mathieu  Orlich,  for  a  passport.     *     *     * 

"  The  applicant  states,  as  you  will  observe,  that  he  obtained  a  i^assport 
from  this  Department  in  1853  or  1854;  but  upon  examination  of  the 
Department  records,  this  statement  appears  to  be  inaccurate.  If  jMr. 
Orlich  is  entitled  to  a  passport,  an  application  to  you  would  have  been 
sufficient  to  secure  one.  *  ♦  » 
448 


CHAP.  VII.]  rKOTECTION    OF    GOVEENMl'.NT.  [§  190. 

"  lu  jiulgiug  Mr.  Orlicli's  claim  to  protection  as  au  American  citizen, 
you  have  the  i^rinciple  laid  down  in  the  circular  from  tbis  Department 
issued  October  14,  1869,  to  guide  you.  Without  determining  that  the 
continued  residence  in  Turkey  of  an  Hungarian  or  Austrian  who  may 
have  been  naturalized  as  an  American  citizen  is  necessarily  to  be 
regarded  in  the  same  light  as  the  circular  indicates  with  respect  to  a 
naturalized  citizen  returning  to  the  country  of  his  nativity,  it  may  well 
be  that  the  same  principle  applies.  The  foct  of  the  person  having  been 
born  in  a  contiguous  jurisdiction  assimilates  hiscase  very  closely  to  the 
case  contemplated  by  the  circular,  which  was  intended  only  to  indicate 
the  general  principle  and  theory  by  which  the  agents  of  the  Govern- 
ment in  foreign  countries  are  to  be  governed  in  deciding  the  questions 
which  come  before  them, 

"Among  the  tests  which  may  be  applied  to  determine  the  intent  of  a 
naturalized  person  who  resides  continuously  abroad,  the  fact  of  pay- 
ment by  such  person  of  the  income  and  excise  taxes  which  have  been 
imposed  by  law  (since  1861)  ii\)oii  American  citizens  will  be  an  im^wr- 
tant  aid.  Inquiry  should  be  made  when,  and  in  what  assessment  district, 
the  returns  required  by  the  internal-revenue  laws  have  been  made; 
where  and  to  whom  the  taxes  have  been  paid.  The  omission  to  have 
made  the  returns,  or  to  have  paid  any  tax,  would  necessarily  cast  grave 
suspicion  upon  the  claim  of  the  party  applying  for  the  protection  of  a 
Government  from  whose  support  he  has  withheld  the  contributions 
required  of  all  its  citizens,  whether  resident  at  home  or  abroad  ;  and  if 
such  omission  has  been  long  continued,  it  will,  as  a  general  rule,  justify 
the  refusal  of  a  recognition  of  the  claim  to  protection." 

Mr.  Fish,  Sec.  of  Stale,  to  Mr.  MacVcngli,  Dec.  13,1870.  MSS.  Inst.,  Turkey; 
For.  Eel.,  1871. 

"Citizenship  involves  duties  and  obligations,  as  well  as  rights.  The 
correlative  right  of  protection  by  the  Government  may  be  waived  or  lost 
by  long-continued  avoidance  and  silent  withdrawal  from  the  perform- 
ance of  the  duties  of  citizenship  as  well  as  by  open  renunciation." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jwles,  Oct.  30,  1871.  MSS.  Doiu.  Let.  To  samo 
cftect  SCO  Mr.  Fish  to  Mr.  Colfax,  Mar.  12,  1872;  ibid.  Mr.  Fisli  to  Mr. 
Howard,  Ai)r.  23,  1872;  ibid.     See,  more  fully,  supra,  ^  17G. 

"A  citizen  of  the  United  States  who  voluntarily  enlists  in  a  foreign 
army  has  no  claim  on  this  Government  to  intervene  to  procure  his  dis- 
charge." 

Mr.  Fish,  Sec.  of  Slate,  to  Mr.  Bliss,  Nov.'l,  1872.     MSS.  lust.,  Mex. 

A  citizen  of  the  United  States  may  forfeit  the  juotection  of  its  Gov- 
ernment abroad  by  making  his  ix'rmanent  residence  abroad  and  eva<l- 
ing  performance  of  the  duties  of  citizenshi[). 

Mr.  Fish,  Sec.  of  State,  to    Mr.  15e;n<lsley,  Apr.    2^^,    l.~-73.     MSS.   Insl.,   Barb. 
Powors. 
S.  Mi.s.  16L'— VOL.  fi li!)  419 


§  190.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VII. 

"  Wheu  a  citizen  of  tlio  Uuiteci  States  goes  abroad  Mitbout  any  inten- 
tion to  return,  be  forfeits,  vritb  tbe  abandonment  of  bis  conntry,  all 
rigbts  to  tbe  protection  of  its  Government." 

Mr.  Fish.  Sec.  of  State,  to  Mr.  llackett,  June  12,  1S73.     MSS.  Dom.  Let. 

"  Tbe  Court  of  Claims,  adopting?  tlie  brnguago  of  my  predecessor, 
Mr.  Seward,  bas  decided  it  to  be  tbe  bnv  and  u.sage  of  nations  tbat  one 
wbo  takes  up  a  residence  in  a  foreign  place  and  tbere  sutlers  an  injury 
to  bis  property  by  reason  of  belligerent  acts  committed  against  tbat 
place  by  anotber  foreign  nation,  nnist  abide  tbe  cbances  of  tbe  country 
in  wbicb  be  cboosos  to  reside,  and  bis  only  claim,  if  any,  is  against 
tbe  Government  of  tbat  country,  in  wbicb  bis  own  sovereign  will  not 
interest  bimself.  Sucb  bas  been  tbe  doctrine  and  practice  of  tbe  United 
States  and  of  tbe  great  powers  of  Europe." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sicbert,  Apr.  18,  187;').   MSS.  Dom.  Lot. 

Tbat  in  sucb  cases  rcQuuciatiou  of  citizonsbip  may  be  inferred,  see  Mr.  Fisb, 
Sec.  of  State,  to  Mr.  Davis,  Jan.  19,  1875.  MSS.  lust.,  Germ.  Mr.  Fisb  to 
Mr.  DaA'is,  Juno  2,  1875;  Mr.  Fisb  to  Mr.  Davis,  July  21,  1875;  Mr.  Blaino 
to  Mr.  Everett,  Aug.  24.  1881,  ibid.  Same  to  same,  Aug.  23,  1881 ;  Mr.  Frc- 
linguysen  to  Mr.  Kasson,  .Jan.  15,  1885;  ibid.     See  8Hj>m.  ^  17G. 

A  citizen  of  tbe  United  States  wbo  accepts  and  enters  on  an  intended 
permanent  domicil  in  a  foreign  state  loses  tbe  rigbt  to  claim  tbe  diplo- 
matic interposition  of  tbe  Government  of  tbe  United  States  against 
sucb  foreign  state. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Logan,  Mar.  9,  1681.     MSS.  Inst.,  Cent.  Am. 

"From  tbe  tenor  of  your  telegram  of  tbe20tb  instait  I  learn  tbat  six 
American  suspects  are  still  detained  in  prison.  Of  tbese  six  cases 
tbree,  viz,  O'Maboncy,  McSweeuey,  and  McEnery,  bad  been  previously 
made  known  to  tbe  Department.  Tbe  cases  of  Slattery,  Bropby,  and 
Gannon  are  now  made  known  to  us  for  tbe  first  time. 

"  It  appears  from  documents  on  file  in  tbis  Department  tbat  O'Ma- 
boney  in  186G  made  application  in  Louisiana  for  naturalization  under 
tbe  soldiers'  act  (Eev.  Stat.,  §  21GG),  and  was  refused,  for  wbat  cause 
is  not  stated.  He  tbcn  returned  to  Ireland,  wbere  be  remained.  In 
October,  1875,  be  went  into  business  as  a  keeper  of  a  public  bouse  and 
retailer  of  liquors,  at  a  place  called  Ballydebob.  Tbis  business  bas 
been  carried  on  in  bis  name  since  1875.  In  1878  be  came  to  tbe  United 
States  of  America,  and  obtained  naturalization  bere  in  February,  1880, 
witbout  stopping  bis  business  in  Ballydebob.  He  tben  returned  to 
Ireland,  wbere  be  was  and  still  is  a  rate-payer,  tax-payer,  and  voter,  and 
offered  bimself  as  a  candidate  for  poor-law  guardian.  lie  was  elected, 
qualified,  and  entered  upon  the  discbarge  of  tbe  duties  of  tbe  ofiQce, 
and  was  discharging  tbem  wben  arrested.  Ilis  imprisonment  under  bis 
present  arrest  dates  from  November  last. 

"On  tbis  statement  it  cannot  be  denied  tbat  O'Maboney  is  a  citizen 
of  tbe  United  States.    Tlie  assurance  wl.icb  tbe  ordinary  processes  of 

m 


CHAP.  VII.]  PROTECTION    OF    GOVERNMENT.  [§  190. 

naturalization  give  to  tlie  United  States  that  its  citizenship  is  sought 
with  a  purpose  of  forming  part  of  its  popuhition,aud  contributing  to  its 
wealth  and  its  strength,  is  waived  in  this  statute,  and  that  great  i^riv- 
ilege  is  conferred  for  the  sole  consideration  of  a  year's  service  in  its 
military  forces.  And  although  that  alleged  service  had  been  rendered 
fifteen  years  before  the  naturalization,  and  although  the  person  seeking 
the  naturalization  had  abandoned  the  country  and  was  in  business  in  a 
foreign  lantl,  and  holding  office  there  with  every  apparent  purpose  of 
remaining  there  permanently,  the  language  of  the  act  seemed  to  leave 
the  court  no  discretion  to  refuse  the  decree  when  it  was  once  proved  that 
the  applicant  had  enlisted  in  the  armies  of  the  Cnited  States,  that  ho 
had  been  honorably  discharged  therefrom,  and  that  he  had  resided  more 
than  one  year  in  the  United  States  previous  to  his  application. 

"  In  this  statement  I  make  no  account  of  the  fact  that  O'Mahoney 
informed  the  consul  at  Cork  that  his  alleged  service  was  in  the  Xavy. 
If  his  statement  to  the  consul  was  correct,  his  alleged  naturalization  was 
fraudulent  and  in  violation  of  law  under  the  settled  rulings  of  this  Gov- 
ernment. This  precise  point  has  been  decided  by  the  district  court  of 
the  United  States  for  the  district  of  Oregon.  {In  re  Bailey,  2  Sawyer, 
200.)     [But  see  Stewart's  case,  cited  stipra,  §  173.] 

"Assuming,  however,  that  the  naturalization  was  within  the  letter 
of  the  law,  the  President  is  of  the  opinion  that  it  was  only  just  within 
the  letter,  and  that  it  was  wholly  outside  the  spirit  and  intent  of  the 
naturalization  laws.  We  generously  welcome  aliens  within  our  folds 
with  the  expectation  that  they  are  really  to  become  bone  of  our  bone 
and  flesh  of  our  flesh  ;  that  they  are  to  cast  their  lots  in  with  us,  and 
that  the  fruits  of  their  industry  are  to  form  part  of  our  national  wealth. 
But  when  an  alien  is  at  the  very  time  of  his  naturalization,  and  for  years 
before  has  been,  a  resident  and  oflice-holder  in  the  countrj-  of  his  origin, 
when  after  his  naturalization  he  puts  his  certificate  in  his  pocket  and 
returns  to  the  country  of  his  origin,  and  continues  to  reside  there  in 
business  and  holding  office,  the  President  feels  it  to  be  his  duty  to  afford 
to  such  a  citizen  only  the  measure  of  protection  demanded  by  the  strict- 
est construction  of  duty,  namely,  that  he  shall  receive  from  the  hands 
of  the  Government  under  which  he  is  holding  office  the  measure  of  pro- 
tection which  it  affords  to  its  own  citizens  or  subjects. 

"Mr.  McSweeney  was  naturalized  many  years  since  and  resided  in 
San  Francisco,  engaged  in  the  cattle  trade.  About  six  years  ago  he 
returned  with  his  family  to  Ireland  and  purchased  some  property  there. 
For  the  last  six  years  he  has  been  residing  there,  and  it  is  understood 
tliat  he  also  is  holding  office  as  a  i)()or-law  guardian  witli  an  apparent 
purpose  of  remaining  in  Ireland,  lie  is  a  gentleman  of  influence  and 
apj)ear.s  to  have  taki-n  a  prominent  part  in  the  troubles  which  are  now 
agitating  Ireland.  He  says  that  his  action  has  been  that  of  a  peaceable 
citizen  and  within  the  line  of  the  law.  The  British  authorities  main- 
tain that  they  have  good  right  to  suspect  him  of  inciting  persons  unlaw* 

451 


§  190.]    CITIZHNSIIir,  NATURALIZATION,  AND  ALIENAGE.    [cUAP.  VII. 

fully  to  iisscmblo  together  iiiul  to  eoiiimit  riot  and  as.s;mlt.  It  is  uiuler- 
stooil  that  the  r>riti.sli  authorities  arc  ready  to  release  him  if  he  will 
leave  Ireland. 

"The  President  has  carefully  considered  this  ease  also.  When  a 
naturalized  citizen  resumes  his  residence  with  his  family  in  the  land  of 
his  ori<;in,  and  ^oes  into  business  there,  and  beconu's  an  (lliee  holder, 
and  takes  active  part  in  j)oIitical  discussions,  if  it  turns  out  that  his 
action  fjives  oflense  to  the  local  government,  and  he  is  thrown  into  prison, 
the  laws  and  interests  of  the  Uinted  States  do  not  require  us  to  do  more 
than  insist  that  he  sliall  Lave  a  right  to  return  to  the  country  of  his 
adoption,  leaving  the  question  of  damages  for  future  di.scussion. 

"  Such  is  understood  to  have  been  the  course  pursued  by  the  United 
States  during  the  late  civil  war.  In  Sei)ten)ber,  18G2,  the  British 
charg6  d'affaires  at  AVashington  requested  the  discharge  of  one  Francis 
Carroll,  a  British  subject,  who  had  been  arrested  by  the  military  au- 
thorities in  Baltimore.  Mr.  Seward  refused  the  request,  and  in  a  note 
to  ]Mr.  Stuart  said: 

" '  Is  the  Government  of  the  United  States  to  be  expected  to  put  dow^n 
treason  in  arms  and  yet  leave  persons  on  liberty  who  are  capable  of 
spreading  sedition?  #  »  #  Certainly  the  Government  could  not 
expect  to  maintain  itself  if  it  allowed  such  mischievous  license  to  Ameri- 
can citizens.  Can  the  case  be  different  when  the  dangerous  person  is 
a  foreigner  living  under  the  protection  of  this  Government?  I  can  con- 
ceive only  one  ground  upon  wliicli  his  release  can  be  ordered,  and  that 
is  that  he  may  be  too  unim])ortant  and  too  passionate  a  person  to  be 
heeded  in  his  railings  against  the  Government.  But  you  will  bear  in 
mind  that  the  times  are  critical,  and  that  sedition  is  easily  moved  now 
by  evil-designing  men  who  in  times  of  peace  might  be  despised.'  (Dip- 
Corr.  1802,  p.  223.) 

"A  correspondence  ensued,  which  resulted  in  a  i)roposal  that — 

"'Mr.  Carroll  should  be  released  from  custody  upon  his  agreeing  to 
leave  the  United  States  immediately,  and  not  return  again  during  the 
continuance  of  this  rebellion,  and  giving  security  to  the  approval  of  the 
United  States  marshal  that  he  will  keep  said  agreement.'  (Bip.  Corr. 
18C3,  p.  400.) 

"This  offer  was  accepted  by  the  British  charg6  d'affaires,  and  Mr.  Car- 
roll was  discharged. 

"  The  President  cannot  assume  that  an  exercise  of  national  sovereignty 
which  was  performed  by  the  United  States  when  their  security  was 
assailed  cannot  be  performed  by  other  powers  similarly  situated,  subject, 
of  course,  always  to  be  questioned  when  the  good  faith  of  its  exercise 
may  be  drawn  in  doubt. 

"But  in  the  exercise  of  such  an  extreme  right  of  sovereignty  the  com- 
ity of  nations  demands  that  the  power  exercising  it  should  hold  itself 
ready  at  all  times  to  explain  to  the  power  on  whose  citizens  it  has  been 
exercised  the  reasons  which  have  compelled  it.    It  cannot  be  doubted 


CHAP.  VII.]  PROTECTION    OF    GOVERNMENT.  [§  190. 

that  Uer  Majesty's  Govenimcut  will  observe  the  same  spirit  of  courtesy 
in  this  respect  that  the  Government  of  the  United  States  displayed 
when  the  case  was  reversed.  You  will  therefore  inquire  of  Lord  Gran- 
ville whj'.  these  two  prisoners  are  detained,  and  if  it  should  appear  that 
we  are  correctly  informed  as  to  their  history  and  as  to  their  active  par- 
ticipation in  the  local  i)olitics  of  Ireland,  and  you  are  assured  that  they 
may  leave  the  country  at  any  moment  they  please,  you  will  communi- 
cate these  facts  to  the  Department  and  await  further  instructions. 

"As  to  the  prisoner  McEnery,  it  is  understood  here  that  he  was 
arrested  last  June  on  suspicion  of  being  concerned  in  an  assault  and  in 
breaking  into  a  dwelling.  It  is  now  nearly  a  year  since  this  arrest  was 
made,  and,  making  due  allowance  for  the  exceptional  condition  of  Ire- 
land, the  Prel^ident  is  of  opinion  that  the  time  has  come  when  Her 
Majesty's  Government  should  frankly  state  why  be  is  held  and  when 
he  may  have  an  opportunity  of  defense.  The  President,  on  entering 
upon  the  duties  of  his  oftlce  on  the  death  of  President  Garfield,  was 
ignorant  of  these  arrests  and  of  their  nature.  My  attention  was  not 
called  to  them  when  I  took  charge  of  the  Department.  It  was  not  until 
I  had  been  here  some  weeks  that  the  friends  of  the  prisoners  brought 
the  real  facts  to  my  knowledge.  Since  then,  under  direction  of  the 
President,  I  have  spared  no  eifort  to  have  this  matter  properly  adjusted. 
I  am  bound  to  say  that  our  exertions  have  been  met  in  a  spirit  of  friend- 
ship by  Her  JNIajesty's  Government;  but  it  assumes  as  the  basis  of  its 
action  a  principle  to  which  the  President  cannot  assent.  In  his  note  of 
the  Gth  April,  to  Mr.  West,  Lord  Granville  quotes  with  approval  the 
following  extract  from  a  note  of  the  14th  October,  1861,  from  Mr.  Seward 
to  Lord  Lyons: 

'"In  every  case  subjects  of  Her  Majesty  residing  in  the  United  States 
and  under  their  protection  are  treated,  during  the  present  troubles,  in 
the  same  manner  and  with  no  greater  or  less  rigor  than  American  citi- 
zens.'   *     *     * 

''Its  [American  citizenship]  assumption  im])lies  the  promise  and  the 
obligation  to  observe  our  laws  at  home,  and  peaceably  as  good  citizens 
to  as.sist  in  maintaining  our  faith  abroad,  without  efforts  to  entangle  us 
in  internal  troubles  or  civil  discord  with  which  we  have  not,  and  do  not 
wish  to  have,  anything  to  do.  When  an  American  citizen  thus  con- 
ducts himself,  whether  at  home  or  abroad,  he  is  entitled  to  the  confi- 
dence of  his  Government  and  active  sui)])ort  of  all  its  officials.  If 
l)usine.ss  interests  or  the  ties  of  aliection  take  him  into  lands  where 
from  any  cause  laws  which  protect  him  from  arrest  and  imprisonment 
<lo  not  exist,  his  Government  claims  the  right  to  interpose  its  own  shield 
to  take  the  place  of  the  protection  which  is  denied  by  local  laws. 

"The  President  is  aware  that  Ireland  is  now  in  an  exceptional  con- 
dition.    Put  even  if  all  l)e  true  whicdi  is  stated;  if  it  is  im])ossibl('  to 
conduct  a  tiial  by  jury  of  a  breaker  of  the  peace  with  any  hope  to  eon 
vietion,   even    with    th<'   clearest    ])roof;     if   the    witness    who    testiiies 

'15.'} 


§190.]    CITIZEXSIIIP,  XATURALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

against  such  an  ofreuder  does  it  with  his  lil'e  in  his  hands ;  il"  it  be  inipos- 
sible  for  owners  of  property  to  collect  rents  under  any  ])rocess  of  law; 
if  those  who  arc  responsible  for  the  administration  of  law  in  Ireland 
are  seeking  to  do  iiway  with  this  unha])py  condition — even  if  all  this 
be  true,  it  furnishes  no  sullicient  reason  why  an  American  citizen  ^;hould 
remain  incarcerated  without  accusation,  without  chance  of  trial,  without 
opportunity  for  release.  The  President  is  gratified  to  observe  that  the 
claim  thus  to  hold  American  citizens  is  modilied  by  the  fo]h>wing  lan- 
guage in  Lord  Granville's  instruction  of  April  C  to  Mr.  VVest: 

"'The  Irish  Government  have  in  many  instances  released  prisoners 
upon  a  reasonable  belief  that  it  could  be  done  without  risk  to  the  i)ub- 
lic  safety,  and  I  need  hardly  say  that  Her  Majesty's  Government  are 
not  desirous  of  detaining  unnecessarily  in  prison  any  ])erson  from  whom 
no  danger  to  the  public  peace  is  to  be  apprehended. 

'"They  will  therefore  be  prepared  to  consider  the  circumstances  of 
any  citizens  of  the  United  States  now  detained  who  may  be  willing  to 
engage  forthwith  to  leave  the  United  Kingdom.' 

"The  President,  moreover,  has  little  doubt  tliat  Her  Majesty's  Gov- 
ernment do  not  intend  to  insist  in  practice  upon  the  extreme  doctrine 
that  an  American  citizen  against  whom  there  is  no  charge  shall,  with- 
out trial,  remain  in  prison  or  leave  the  United  Kingdom.  But  he  be- 
lieves, by  fairly  considering  each  case  as  it  arises,  conclusions  will  be 
reached  satisfactory  to  both  Governments. 

"After  satisfying  yourself  tliat  the  three  persons  whose  names  are 
now  reported  to  us  are  citizens,  you  will  ask  Her  Majesty's  l>overn- 
nient  why  they  arc  detained,  and  whether  it  is  contemplated  to  give 
them  trials,  reporting  by  cable;  and  should  your  intervention  or  ])ro- 
tection  be  claimed  by  others  hereafter,  you  will  be  governed  by  the 
rules  and  piinciples  laid  down  in  this  dispatch." 

Mr.  Frcyliiigluiyscn,  Sec.  of  Slate,  to  Mr.  Lowell,  Apr.  'Jf),  1882.     MSS.  Inst., 
Or.  Brit.;  For.  liel.,  1832. 

"It  apiiears  from  your  statement  that  you  emigrated  from  the  United 
States  to  Fiji  in  18GG,  your  object  being  to  obtain  a  residence  in  a  cli- 
mate more  favorable  to  your  health.  You  there  made  considerable  in- 
vestments. In  1875  the  Fiji  Islands  were  annexed  to  Great  Britain, 
and  it  appears  that  you  suffered  various  injuries,  both  from  the  Fiji 
and  the  British  Governments,  which  would  entitle  you  to  redress  at  least 
from  the  latter;  and  if  you  were  a  citizen  of  the  United  States,  domi- 
ciled in  the  United  States,  you  might  in  some  contingencies  sustain  an 
appeal  for  the  diplomatic  intervention  of  this  Department.  Whether 
you  still  remain  a  citizen  of  the  United  States  is  a  question  which  it  is 
not  necessary  here  to  discuss.  It  is  sufficient  to  say  that  your  adoi)tioii 
of  Fiji  as  a  permanent  home  leads  the  Department  to  infer  that  you 
accepted  a  Fiji  domicil.  If  so,  your  continuance  in  Fiji  after  British 
annexation  makes  your  domicil  British,  and  under  these  circumstances 
45i 


CHAP.  VII.]  PROTECTION    OF    GOVERNMENT.  [§  190rt. 

it  is  not  thought  that  you  can  lay  claim  to  the  diplomatic  interveutiou 
of  the  Department. 

"It  was  held  in  a  recent  case  that,  if  a  domicil  in  New  Mexico  was 
proved  to  have  attached  to  a  British  subject  there  resident,  this 
excluded  such  party  from  the  right  to  appeal  to  British  intervention 
for  redress  for  wrongs  inflicted  on  the  party  in  New  IMexico.  The  same 
princiiDle  rules  the  i)resent  case. 

"No  doubt  the  grievances  of  wliich  you  complain  entitle  you  to  much 
sympathy,  but,  if  domiciled  in  Fiji,  your  redress  must  now  be  sought 
from  the  British  Government,  either  because  it  sanctioned  sucb  injuries 
or  because  it  stands  in  the  place  of  the  Fiji  authorities,  by  whom  they 
were  perpetrated." 

:srr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Burt,  July  11,  1885.  MSS.  Doiu.  Let. 
See  siqyra,  ^  170.  See  Mr.  BaTard  to  Mr.  Hanua,  June  25, 1880.  MSS.  Inst., 
Arg.  Rep. 

"  The  American  citizen  who  goes  into  a  foreign  country,  although  he 
owes  local  and  temporary  allegiance  to  that  country,  is  yet,  if  he  per- 
forms no  other  act  changing  his  condition,  entitled  to  the  protection  of 
his  own  Government,  and  if,  without  the  violation  of  any  municipal  law, 
he  should  be  oppressed  unjustly,  he  would  have  a  right  to  claim  that 
protection,  and  the  interposition  of  the  American  Government  in  his 
favor  would  be  considered  as  a  justifiable  interposition.  But  his  situa- 
tion is  completely  changed  where  by  his  own  act  he  has  made  himself 
the  subject  of  a  foreign  power.  Although  this  act  may  not  be  sufficient 
to  rescue  him  from  punishment  for  any  crime  committed  against  the 
United  States — a  point  not  intended  to  be  decided — yet  it  certainly 
places  him  out  of  the  protection  of  the  United  States  while  within  the 
territory  of  the  sovereign  to  whom  he  has  sworn  allegiance,  and,  con- 
sequentl}',  takes  him  out  of  the  description  of  the  act." 

Marshall,  C.  J.;  Murray  v.  Sclioouer  Charming  Betsy,  2  Crauch,  120.  See  the 
Santissima  Trinidad,  1  Brock,  478. 

Where  a  citizen  of  the  United  States  at  diflerent  times  obtained 
Austrian  passports,  traveled  as  an  Austrian  subject,  and  resided  many 
years  in  the  country,  he  will  be  considered  an  Austrian,  on  the  ground 
that  consent,  together  with  the  laws  of  that  country,  has  effected  a 
change  in  his  nationality. 

14  Op.,  154,  Williams.  1872. 

(3)   CaUE  of  DESTITUTJ!:    citizens   AIJKOAD  not  ASSUiMED. 

§  lOOrt. 

VVTiile  the  Federal  and  State  Governments  in  this  country  make  pro- 
vision for  the  care  of  all  destitute,  sick,  or  infirm  persons  within  their 
borders,  without  regard  to  nationality,  no  i)rovision  as  yet  exists  in 
most  States,  or  under  the  Federal  system,  for  the  relief  of  destitute, 
sick,  or  infirm  citizens  of  the  United  States  abroad. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Motley,  Apr.  7,  18C2.     MSS.  IuhI.,  Auntria. 

405 


§  101.]     CITIZKN-SIIIP,  NATURALIZATION,  AND  ALIENAGE.    [ClIAr.  VII. 

Till'  Goveniniont  of  the  United  States  caniiot  uiuleilake  "to  bccoiuo 
almoiier.s  in  foreign  countries  to  bring  back  at  the  public  expense  rec- 
reant or  inconstant  citizens  "wlio  fall  into  misfortune  abroad." 

Mr.  Sewurcl,  Sec.  of  State,  to  Mr.  Fogg,  July  28,  1H(34.     MSS.  IiihI.,  Switz.    Soo 
Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fisli,  Mar.  5,  1880;  ibid. 

"The  Government  of  the  United  States  makes  no  i)rovision  l).v  law 
for  the  relief  of  their  indigent  or  distressed  citizens,  otlier  Uian  seamen, 
in  foreign  countries." 

Mr.  Fish,  Sec.  of  State,  to  Jlr.  Delfosse,  Dec.  'J2,  18()0.     MSS.  Notes,  B.lginiii. 

"Congress,  from  the  beginning  of  the  Ciovernmeiit,  lias  wisely  made 
l)rovision  ibr  the  relief  of  distressed  seamen  in  foreign  countries  ;  no  sim- 
ilar provision,  however,  has  hitherto  been  nuidc  for  the  relief  of  cilizens 
in  distress  abroad,  other  than  seamen.  A  similar  authority,  and  an  ap- 
proi)riation  to  carry  it  into  ellcct,  are  recommended  in  the  case  oi'  citi- 
zens of  the  United  States  destitute  or  sick  undei-  such  circnmsljinces." 
President  Grant,  Fifth  Annual  Message,  1873. 

"  I  will  add  that  instances  of  insanity  on  the  part  of  citizens  of  the 
United  States  abroad  have,  from  time  to  time,  been  repoited  to  this 
Department,  by  ministers  and  con.suls.  When  their  friends  liere  were 
known,  they  were  apprised  of  the  case,  that  they  might  relieve  the  suf- 
ferer. When,  however,  we  could  obtain  no  information  as  to  those 
friends,  or  these  were  unable  to  provide  relief,  the  case  has  been  reported 
to  the  governor  of  the  State  of  which  the  patient  might  be  a  citizen, 
so  that  proper  relief  might  be  afibrded." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Sliishkin,  Jan.  6, 1879.     MSS.  Notes,  Russia. 

"  There  is  no  appropriation  or  authority  for  the  relief  by  a  diplomatic 
ofllcer  of  a  distressed  citizen  of  the  United  States,  or  for  furnisliiug  him 
•transportation  home.  The  exception  in  the  case  of  seamen  falls  nnder 
consular  administration." 

Printed  Pers,  Inst.  Dip.  Agents,  18S5.     Sec  as  to  seamen,  su2ira,  ^  i~'iff- 

IX.  rAssroKTs. 

(1)  Can  oxly  bk  issuicd  by  SiccuirrAUY  of  Statk  oh  uj^ad  ok  lkgatio.n. 

§  191. 

"This  Government  has  a  right  to  ask  tluit  if  citizens  of  the  United 
States,  who  are  traveling  with  regular  passports,  or  what  appear  to  be 
such  passports,  happen  to  fall  under  unjust  suspicions,  every  facility 
will  be  granted  to  them  to  vindicate  their  innocence.  The  refusal  to 
let  friends  communicate  with  them  while  under  arrest,  or  to  let  them 
appeal  to  our  consuls  and  ministers,  was  an  illiberality  of  treatment  on 
the  i)art  of  subordinate  officials  that  cannot  but  be  rejn'ovcd  by  the 
Executive  Government  of  Switzerland.  It  is  expected  that  they  will 
take  proper  steps  to  prevent  this  in  future. 
45G 


CHAP.  VII.]  PASSPORTS.  [§191- 

''  To  preserve  proper  respect  for  our  passports,  it  will  be  necessary  to 
guard  against  frauds  as  far  as  possible  iu  procuring  tbeni.  I  regret  to 
say  that  local  magistrates  or  persons  pretending  to  have  authority  to 
issue  passports,  have  imposed  upon  persons  who  go  abroad  with  these 
spurious  iiapers.  Others  again  who  know  that  they  are  not  entitled  to 
passports — not  being  citizens  of  the  United  States — seek  to  get  these 
fraudulent  passports,  thinking  that  they  will  protect  them  while  abroad." 
Mr.  Marcy,  Sec.  of  Stale,  to  Mr.  Fay,  Oct.  4, 1854.     MSS.  Inst.,  Switz. 

The  earlier  practice  had  been  less  strict.  Thus  in  a  note  of  Lord 
Grenville,  November  3,] TOG,  to  Mr.  King,  United  States  minister  at 
London,  Lord  Grenville  stated :  "  The  consuls  of  the  United  States  re- 
.siding  in  His  Majesty's  dominions  have,  for  some  time  past,  been  iu  the 
habit  of  granting  to  seafaring  persons  certiticates  under  their  consular 
seal,  i)urporting  that  the  bearers  of  them  arc  citizens  of  the  United 
States,  and  as  such  liable  to  be  called  upon  for  the  service  of  their  own 
country,  and  that  they  are  therefore  not  to  be  interrupted  or  molested 
by  any  persons  whatever.  I  have  reason  to  believe  that  those  certifi- 
cates have  frequently  been  granted  on  very  slight  and  insufficient  evi- 
dence, and  1o  a  great  number  of  persons  who  were  iu  fact  British  sea- 
men. But,  independently  of  this  abuse,  I  am  under  the  necessity  of 
representing  to  you,  on  the  part  of  His  Majesty's  Government,  the  insu- 
perable objections  which  ai)ply  to  the  principle  of  a  jurisdiction  iu  this 
respect  assumed  and  exercised  within  His  Majesty's  dominions  by  the 
consuls  of  a  foreign  nation."  In  reply,  Mr.  King,  on  November  18, 
states:  "I  am  at  i)resent  inclined  to  believe  that  the  administration  of 
oaths  by  our  consuls,  in  these  or  in  any  other  cases,  to  British  subjects, 
is  neither  necessary  nor  proper.  *  *  *  j  would  not  be  understood 
as  giving  a  settled  opinion  on  this  point.  1  ought  not  to  omit  observing 
to  you  that  neither  our  laws  respecting  consuls,  nor  the  late  law  for  the 
relief  and  protection  of  American  seamen,  give  to  our  consuls  anj'  au- 
lliority  to  grant  certificates  of  citizenship,  and  I  have  seen  no  instruc- 
tion from  the  Executive  that  authorizes  it."  Mr.  King,  on  December 
10,  179G,  wrote  to  the  Department,  "  1  do  not  consider  myself  authorized 
to  instruct  our  consuls  iv.  this  or  in  any  other  instance." 

See,  furtLer,  Lord  Grcnvillc's  letter  to  Mr,  King,  Mar.  27,  1799.    2  Am.  St.  Pap. 
(For.  Rel.),  148. 

"With  the  practice  of  Massachusetts  in  issuing  certificates  of  citi 
zeuship  to  citizens  of  that  Commonwealth  going  abroad,  this  Depart- 
ment has  no  concern.  If  those  documents  have  answered  all  the  pur- 
poses of  passports  iu  all  parts  of  the  civilized  world,  it  was  probably 
owing  to  their  having  been  authenticated  by  a  minister  or  consul  of  the 
Utittd  States,  more  especially  in  countries  where  vigilance  is  exercised 
in  regard  to  the  introduction  of  foreigners." 

Mr.  Forsyth,  Sec.  of  Statu,  to  the  secretary  of  the  Coniinni)\vi\iltli  of  Massiuliii- 
Hetts,  Apr.  21, 183.').     MSS.  Dom.  Let. 

No  onicer  in  the  United  States,  except  the  Secretary  of  State,  is  au- 
lliorized  to  i.s.sue  pa.^sports  or  instruments  in  the  nature  of  passport.s. 
Mr.  FiHh,  See.  of  State,  Circnhir,  Jan.  10, 1872.     M.SS.  IiiRt.,  Arg.  R.'p. 

'157 


§  191.]     CITIZENSHIP,  XATITKALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

Pass])Oits  issiR'd  by  goveruors  of  States  arc  not  only  iiiviilitl,  but 
iuvasions  of  the  exclusive  prerogative  of  tlie  Govcrnincut  of  tlie  United 
States  in  this  relation. 

Mr.  Fish,  Sec.  ol'  Stale,  to  Mr.  Coke,  Mar.  2;<,  1^7").  MSS.  Doin.  Lot.  See  also 
Mr.  Cadwalader,  Asst.  Sec.  of  State,  to  Mr,  Uaiue,  Apr.  2\\,  1875.  Mr.  Fish 
to  Mr.  Kellof^g,  Juno .'"),  1875.  See  letter  of  Mr.  Freliiighiiyscn,  Sec.  of  State, 
to  Mr.  Brewster,  Feb.  Iv.',  1884.     MSS.  Doiu.  Let. 

The  issuing,  by  a  notaiy  in  this  country,  of  a  "  certiticate  of  identity '' 
to  a  i)er£OU  about  to  travel  abroad,  is  an  infraction  of  the  statute  luo 
hibiting  "all  i)ersons  acting,  or  claiming  to  act,  in  any  office  or  capacity 
under  the  United  States  who  shall  not  be  lawfully  authorized  .so  to  do," 
from  "issuing  any  passport  or  other  instrument  in  the  nature  of  a  pass- 
port," etc. 

Mr.  Evarts,  See.  of  Stale,  to  the  Governor  of  New  Voik,  Juno  8,  lci77.  MSS. 
Doni.  Let. 

A  certificate  and  affidavit  issued  by  a  consul  of  the  United  States  in 
Germany  to  citizens  of  the  United  States  about  to  marry  in  Germany, 
as  to  their  citizenship,  is  not  a  passport. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Everett,  Apr.  '2i),  1878.     MSS.  Inst.,  Germ. 

"  No  persons  other  than  the  Secretary  of  State  of  the  United  States 
and  such  diplomatic  and  consular  officers  as  may  be  designated  by  the 
President  are  authorized  to  issue  passports  at  all,  and  none  can  be 
issued  except  to  American  citizens." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Cooper,  Nov.  22,  1879.     MSS.  Dora.  Lot. 

A  United  States  consul  in  China  is  not  authorized  to  grant  or  issue 
a  passport  unless  in  the  absence  from  China  of  the  diplomatic  represent- 
a.tive  of  the  United  States.  Nor  is  it  permissible  for  such  representa- 
tive to  send  passports  signed  by  him  in  blank  to  be  filled  up  by  the 
consul. 

Mr.  Frelinfthnysen,  Sec.  of  State,  to  Mr.  Young,  Sept.  27,  1884.  MSS.  Inst., 
China.  See  Mr.  Frelinghnysen,  Sec,  of  State,  to  Mr.  Russell,  Jan.  19,  1885, 
ibid.,  where  it  is  said  "although  the  custom  of  issuing  blank  passports  sealed 
and  signed  by  the  minister  was  approved  by  the  Department  in  dispatch 
Xo.  79,  of  Sept.  11,  1870,  it  is  not  thought  proper  to  continue  the  practice." 

"  It  is  expected  that  sections  118-133  in  Personal  Instructions,  in  con- 
nection with  Forms  1, 14,  and  15  in  the  appendix  to  the  same,  respecting 
passports,  shall  be  exactly  observed.  The  oath  of  allegiance  as  there 
given  should  be  administered  in  all  cases. 

"There  is  no  objection  to  allowing  the  consuls  to  receive  applications 
for  passports  according  to  the  same  forms  used  by  the  legation,  Su(;h 
applications  should  be  made  under  oath,  the  identity  of  the  applicant 
properly  testified  to,  and  the  application  signed  and  sealed  by  the  con- 
sul be  transmitted  in  dii])licate  to  tlie  legation  with  the  prescribed  fee 
458 


CHAP.  VI  r.]  PASSPORTS.  [§  191. 

of  $5.  The  legation  will  llieu  pass  upou  it  aud  send  the  passport 
tbroiigli  the  cousul  if  there  be  no  objection.  One  copy  of  the  applica- 
tion should  be  kept  in  the  legation  and  the  other  transmitted  to  the 
Department  with  the  quarterly  returns.  This  system  has  been  in  use 
in  Germany  for  over  ten  years  and  been  found  to  work  well. 

"Passports  are  still  rigorously  insisted  on  from  travelers  entering 
Eussia,  and  also  in  Germany  for  persons  remaining  any  length  of  time 
in  the  large  cities  or  studying  at  the  universities,  and  there  appears  in 
those  countries  to  be,  as  yet,  no  tendency  towards  a  relaxation  of  these 
formalities." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  McLane,  Mar.  8, 1886.     MSS.  Inst.,  Frauce. 

"There  was  doubtless  a  lime  when  a  rigid  surveillance  of  travel  was 
necessary,  but  it  is  confidently  submitted  that  passports  are  no  longer 
needed  as  a  prudential  device,  while  the  cost  of  the  documents  and  of 
the  Spanish  consular  authentications  thereof  is  a  serious  obstruction 
to  travel  and  forms  a  heavy  jiersonal  tax  aud  inconvenience  upon  trav- 
elers between  the  United  States  and  Cuba. 

"As  a  means  of  controlling  individuals,  the  efficacy  of  passports  is 
questionable,  for  little  or  no  impediment  can  exist  to  their  procurement, 
either  in  a  regular  way  upon  proof  of  citizenship,  or  by  subterfuge,  by 
the  few  to  whom  precautionary  measures  might  apply  and  who  are  in- 
terested in  avoiding  them,  while  upon  the  mass  of  honest  travelers  they 
impose  an  expensive  and  useless  burden.  Admitting  that  passports 
may  serve  as  a  check  in  certain  cases,  their  usefulness  in  this  sense  is 
more  than  counterbalanced  by  the  international  considerations  attach- 
ing to  sucli  documents.  Passports  avQ  ])rima  facie  evidence  of  the  indi- 
vidual's right  as  a  citizen  to  the  protection  of  the  Government  which 
is.sues  them,  and  a  special  responsibility  rests  upon  the  Government 
that  disregards  such  evidence.  The  system,  in  fact,  requires  the  issu- 
ing Government  to  demand  for  the  bearer  such  treatment  and  protec- 
tion as  it  gives  e  convcrso  to  aliens  within  its  jurisdiction,  and  binds  the 
other  to  respect  the  evidence  which  has  been  thus  furnished. 

"  The  modern  systems  of  travel,  moreover,  are  on  definite  and  regular 
lines  of  communication.  Individuals  traveling  by  separate  conveyance 
from  one  country  to  another  are  rarely  encountered,  and  to  them  the 
conditions  of  the  passi)ort  system  do  not  apply.  By  the  aid  of  the  elec- 
tric telegraph  instant  notice  can  be  given  of  anything  like  the  forma- 
tion of  a  hostile  expedition,  or  even  of  the  embarkation  of  a  single 
dangerous  individual, 

"The  Government  of  the  United  States  has  given  to  that  of  Spain, 
within  the  last  decade,  such  frequent  and  impressive  evidence  of  its 
vigilant  execution  of  its  neutrality  laws,  and  of  promptness  in  arresting 
all  hostile  movements  directed  again.st  peace  and  order  in  the  Antilles, 
that  nothing  is  now  needed  but  increased  facilities  to  smooth  tl>e  path 

459 


§  191.]     CinZEXSlIir,  NATUKALIZATION,  AND  ALIENAOi:.     [ciIAP.  VII. 

for  oasy  and  fiioiully  travel  on  business,  liealtli,  and  i)leasure  between 
tlie  two  countries. 

"  The  new  lines  of  steam  communication  afford  daily  means  of  tran- 
sit, and  it  is  a  ^reat  profit  and  advantairc  to  Cuba  to  have  the  free  ex- 
l)en(liture  by  United  States  citizens  and  travelers  made  in  that  island. 
The  purchases  of  these  numerous  visitors  are  very  lar^e^  and  can  bo 
greatly  increased. 

"This  aspect  of  the  subject  may  not  be  unworthy  of  note,  as  supple- 
menting the  evident  benefits  which  must  flow  from  the  neighborly  in- 
tercourse of  the  better  classes  of  their  citizens.  The  importance  of  the 
latter  consideration  should  not  be  lost  sight  of,  and  it  is  clearly  in  the 
interest  of  undisturbed  interct)urse  to  do  all  that  can  be  done  toward 
l)romoting  it.  No  single  measure  would  more  assist  than  the  abolition 
of  all  laws  and  legulations  requiring  the  possession  of  passports  by 
])ersons  landing  in  the  Antilles  from  the  United  States. 

"  Ivcquiring  on  their  part  no  such  documentary  evidence  Irom  per- 
sons landing  in  the  United  States  from  Spain  or  any  of  the  Spanish  de- 
IH'iidencies,  the  United  States  cannot  view  the  exaction  of  passports 
by  Spain  in  the  light  of  reciprocity ;  but,  on  the  contrary,  as  a  positive 
discrimination  against  their  citizens,  inasmuch  as  no  passports  are  re- 
(luired  in  the  Antilles  of  passengers  from  Europe  or  the  Biitish  ])osses- 
sious  in  North  America.  Nor  is  this  the  only  unfavorable  treatment  in 
respect  of  which  the  Government  of  the  United  States  conceives  it  to 
be  its  duty  to  make  friendly  representations.  In  respect  of  the  Spanish 
consular  visa  attached  to  a  passport  (in  itself  very  onerous),  it  is  notice- 
able that  double  the  charge  is  made  for  the  authentication  of  the  pass- 
ports of  travelers  from  the  United  States  than  is  imposed  in  the  case  of 
the  optional  visa  of  the  passport  of  a  traveler  going  to  Cuba  from 
Europe,  and  providing  himself  with  that  means  of  establishing  his 
identity  and  right  to  courteous  treatment.  And  still  another  discrimi 
nation  api)ears,  for  certain  foreigners,  Germans  in  particular,  going 
from  our  ports  to  Cuba,  are  favored  by  the  collection  of  a  lower  fee  for 
the  visa  of  the  Spanish  consuls  in  the  United  States  than  American  citi- 
zens are  compelled  to  pay  for  the  same  service.  Unreasonable  and 
only  applicable  to  a  part  of  the  foreign  travel  with  Cuba,  the  passi)ort 
system  there  is  thus  made  an  engine  of  an  unfriendly  discrimination. 
In  the  interest  of  both  countries,  therefore,  I  propose  that  passports 
shall  no  longer  be  required  as  the  condition  for  the  landing  of  persons 
in  the  Antilles  from  the  United  States. 

"  No  interference  is  intended  with  the  option  of  the  individual  in  pro- 
viding himself  with  any  convenient  means  of  establishing  his  citizen- 
ship and  identity.  In  the  event  of  proof  of  American  citizenshij)  be- 
coming necessary,  proper  identification  can  be  made,  or  a  passport 
issued  whenever  specially  required.  I  draw  a  distinction  between  the 
right  of  the  citizen  to  obtain  from  his  Government  evidence  of  correla- 
tive allegiance  and  protection  and  the  exaction  by  a  foreign  Govern- 
4G0 


CHAP.  VIl]  TASSPORTS.  [§  191. 

mout  of  such  evideuce  in  respect  onl}'  of  tbc  citizens  or  subjects  of  a 
particular  country." 

Mr.   Bayard,   Sec.  of  State,  to   Mr.  de  Muruaga,  May   It),  188C.     MSS.  Notes, 
Spaiu. 

"Eeferring"  to  my  recent  instructions  concerning  tbc  restrictions  and 
discriminations  imposed  upon  travel  between  the  United  States  and  the 
Antilles,  I  Lave  to  inform  you  that  in  a  conference  with  Seiior  Murua- 
ga, on  the  11th  instant,  he  stated  that,  while  the  Spanish  Government 
does  not  think  it  can  wholly  abolish  f)assports  to  Cuba,  yet  it  will  re- 
lieve citizens  of  the  United  States  of  the  present  unequal  and  discrimi- 
nating charge  of  $4  for  the  consular  visa,  as  against  the  $2  fee  for  the 
visa  of  German  and  other  passports. 

"The  spirit  of  this  announcement  is  apiireciated,  and,  as  far  as  it 
goes,  will  afibrd  slight  relief.  The  question  of  national  discrimination 
is  broadly  involved,  and  I  do  not  understand  Seiior  Muruaga's  declara- 
tion as  meeting  the  disfavor  shown  by  demanding  from  travelers  leav- 
ing the  United  States  passports  which  are  not  required  in  the  case  of 
persons  going  to  Cuba  from  other  countries.  My  recent  note  to  the 
Spanish  minister  has  intimated  the  indisposition  to  accept  as  a  reason 
for  such  discrimination  the  suggestion  he  appeared  to  imply,  that  resi- 
dents in  the  United  States  are,  more  than  in  other  countries,  a  source 
of  peril  to  peace  and  order  in  the  Antilles.  This  Government,  of  course, 
objects  to  any  discrimination,  no  matter  in  what  manner  exj)ressed, 
against  its  citizens." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Curry,  June  14,  1886.     MSS.  Inst.,  Spain. 

"  Passports  in  the  United  States  can  be  issued  only  at  the  Depart- 
ment of  State.  In  foreign  countries  they  can  be  issued  only  l)y  the  act- 
ing chief  diplomatic  representative  ;  or  in  the  absence  of  a  diplomatic 
representative  from  the  country,  then  by  the  consul-general,  if  there  be 
one,  or,  in  the  absence  of  both  of  the  ofBcers  last  named,  by  a  consul 
(Form  Xo.  9  of  the  Consular  Eegulations).  In  the  colonies  of  a  country 
a  passport  may  be  issued  by  a  consul-general,  if  there  be  one;  other- 
wise by  a  consul.  The  issue  of  passports  by  consular  agents  is  prohib- 
ited. Professional  titles  will  not  be  inserted  in  passports.  A  fee  equiva- 
lent to  five  dollars  in  the  gold  coin  of  the  United  States  must  be  charged 
and  collected  for  each  j)assport  granted  or  issued  by  a  diplomatic  agent. 

"  When  an  application  is  made  for  a  passport  by  a  native  citizen,  be- 
fore it  be  granted  the  applicant  must  make  a  written  declaration,  un- 
der oath,  stating  his  name  in  full,  age,  and  place  of  birth,  sup])ortcd 
also,  if  possible,  by  the  allidavit  of  a  creditable  person,  to  whom  the 
ai)i)licant  is  i)ersonally  known,  and  to  the  best  of  whose  knowledge  and 
belief  tlMi  declaration  is  true,  and  the  minist(;r  or  consul  may  re(]uire 
sucli  other  e\'idence  as  he  may  deem  iK^cessary  to  establish  the  appli- 
cant's citizeiisbip.  if  the  apidicant  claims  to  be  a  naturalized  citizen, 
be  shall  also  prodnci;  tbc  original  or  certided  copy  of  the  decret^  of  the 
court  by  wbi(;h  he  was  de(;lared  to  b(^  a  (;itizeii  ;  and  it  is  the  duty  of 
tbc  minister  or  consul,  at  the  close  of  each  quarter,  to  transmit  to  the 
iJepartmeut  a  statement  of  the  evidence  on  which  all  siu'b  passports 
were  issued  or  granted.    The  applicant  should  also,  in  both  cases,  bo 

401 


^S  192.]     CITIZENSHIP,  NATUKALIZATION,  AND  ALIENAGE.    [CHAP.  VIL 

required  to  take  the  oath  of  alk'j,naiiee,  and  the  oath  should  be  trans- 
mitted to  the  Department  \Yith  the  quarterly  return.  A  passport  is- 
sued from  this  J^epartment,  coupled  with  the  proof  that  the  i)erson  in 
whose  behalf  it  is  presented  is  the  person  named  therein,  may  be  taken 
as  prima  facie  evidence  of  the  citizenship  of  the  applicant,  within  two 
years  from  its  date. 

"  When  the  diplomatic  agent  is  satisfied  that  an  apidicant  for  protec- 
tion has  a  right  to  his  intervention,  he  should  interest  himself  in  his  be- 
half, examining  carefully  into  his  grievances.  If  he  lindsthat  the  com- 
plaints are  well  founded,  he  should  interi)osi'  tirndy,  but  with  courtesy 
and  moderation,  in  his  behalf." 

Printed  Pors.  Iiist.  Dip.  Agents,  18d5. 

A  passport  issued  by  an  unauthorized  person  substantially  in  the 
form  used  by  the  State  Department  is  within  the  letter  of  section  23  of 
the  act  of  1850  (Kev.  Stat.,  §4078).  The  prohibition  contained  in  that 
act  is  not  confined  to  the  issuing  and  verifying  of  such  passports  or 
certificates  in  foreign  countries,  but  applies  equally  to  State  and  Fed- 
eral functionaries  residing  here. 
0  Op.,  Sr.O,  Black,  1859. 

(2)  OXLY  TO  crriZEN.s. 
§  19L». 

"  In  times  of  war  and  internal  commotions  such  i)assports  arc  oficn 
solicited,  and  sometimes  sought  by  fraudulent  means  to  be  obtained,  to 
favor  the  escape  of  individuals  having  no  right  to  such  protection,  and 
being  in  peril  of  their  persons.  It  is  not  iujprobable  that  attempts  of 
this  kind  will  be  made  to  obtain  passports  from  you.  Your  vigilance 
will  be  exercised  in  guarding  against  such  impositions,  and  your  firm- 
ness in  resisting  such  solicitations,  liespect  for  thepassi)ort  of  an  Amer- 
ican minister  abroad  is  indispensable  for  the  safety  of  his  fellow-citizens 
traveling  with  it;  and  nothing  would  be  so  fatal  to  that  respect  as  the 
experience  that  his  passport  had  been  abusively  obtained  by  persons 
not  entitled  to  it." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Allen,  Nov.  30,  1823.     MSS.  Itst.,  Miuister.s. 

"  Your  observations  on  the  importance  of  great  care  in  preventing 
foreigners  from  protecting  themselves  under  American  passports  arc 
very  just,  particularly  in  the  case  of  Spaniards  who  use  them  to  evade  the 
laws  of  Mexico.  In  proportion  to  the  care  which  all  our  public  agents 
ought  to  take  in  giving  proper  protection  to  our  citizens,  ought  to  be 
their  circumspection  in  preventing  others,  not  entitled  to  that  privilege, 
from  usurping  it.  The  President  therefore  highly  approves  the  pre- 
cautions you  have  taken  in  the  instances  you  mention.  And  you  arc 
instructed  to  use  every  proper  endeavor  to  convince  tlie  Mexican  Gov- 

402 


CHAP.  VII.]  PASSPORTS.  [§  192. 

eruinent  of  tlie  sincerity  of  j'our  exertions  to  detect  impositions  of  tliis 
kind  in  pnrsuance  of  what  you  may  assure  tlicm  is  the  wish  of  the 
President." 

Mr.  Livingstou,  Sec.   ot  State,  to  Mr.   Butler,  Juno  2G,  1831.     MSS.  Inst.,  Am. 
States. 

"A  passport  is  iu  its  terms  a  certificate  of  citizenship,  and  cannot, 
consequently,  with  propriety  be  given  to  any  person  not  a  citizen.  Mr. 
Davis,  iu  his  report  to  you  in  Lemmi's  case,  aUudes  to  the  passports 
which  were  given  by  Mr.  Brown,  at  Eome,  to  Italians  desirous  of  escap- 
ing after  the  downfall  of  the  government  of  Mazzini  and  his  colleagues. 
Similar  passports  were  given  at  Constantinople  by  the  American  lega- 
tion to  the  Hungarian  refugees.  In  these  last  cases  the  words  '  citi- 
zen of  the  United  States'  were  erased  from  the  passports;  but  Mr.  Davis 
is  not  quite  sure  that  the  consul  at  Eome  was  always  equally  exact. 
If  he  was  not,  he  certainly  committed  a  great  error,  although  no  doubt 
with  good  intentions.  The  value  of  the  passport  to  those  entitled  to  it 
would  soon  sink  if  it  were  understood  that  in  cases  of  emergency  it 
could  be  obtained  by  those  who  are  not  entitled  to  it;  besides  the  very 
grave  objection  that  if  a  passport  containing  the  words  'citizen  of  the 
United  States'  is  intentionally  given  to  a  person  not  a  citizen,  the  sig- 
nature and  seal  of  the  representative  of  the  Government  are  appended 
to  what  is  known  not  to  be  true. 

"  The  objection  is  but  partly  met  by  the  erasure  of  the  words.  Police 
oflBcers  on  the  continent  seldom  understand  our  language;  and  they 
form  an  opinion  of  the  character  of  the  document  by  the  emblems  on 
the  vignette  and  the  seal.  If  these  cease  to  be  reliable  indications,  they 
will  in  the  same  degree  cease  to  be  of  value  to  those  who  are  entitled 
to  them,  and  passports  will  be  subjected  to  a  closer  scrutiny  with  all 
the  inconveniences  of  detention  till  their  precise  character  is  ascer- 
tained." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Iiigersoll,  Dec.  7,  1852.     MSS.  Inst.,  Gr.Brit. 

"The  impropriety  of  any  of  our  legations  granting  passports  to  for- 
eigners, under  any  circumstances,  even  with  the  omission  of  the  clause 
asserting  citizenship,  and  merely  asking  for  the  bearer  liberty  to  pass 
freely,  is  obvious,  for,  as  this  Department  possesses  the  faculty  of  grant- 
ing pas.sports  to  bona  fide  citizens  of  the  United  States  only,  and  as  a 
passport  is  merely  a  certificate  of  citizenship,  it  follows,  as  a  matter  of 
course,  that  no  representative  of  the  United  States  can,  with  propriety, 
give  a  i^assport  to  an  alien. 

"Further,  if  an  alien  has  become  domiciled  in  the  United  States,  or 
declared  his  intention  to  become  an  American  citizen,  he  is  not  entitled 
to  a  passport  declaring  him  to  be  a  citizen  of  the  United  States.  r>oth 
of  these  clas.ses  of  per.sons,  however,  may  be  entitled  to  sonui  recogni- 
tion by  this  Government.    The  mo.st  that  can  be  done  for  tliem  by  the 

403 


§192.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.   VII 

legation  is  to  certify  to  the  genuineness  of  their  iJupers,  when  presented 
for  attestation,  anil  when  tlierc  can  be  no  reasonable  doubt  of  their 
being  authentic;  and  to  this  simple  certilieate  that  to  the  best  of  the 
belief  of  the  legation  the  documents  in  question  are  genuine,  the  Euro- 
pean authorities  are  at  liberty  to  pay  siicli  respect  as  they  think 
proper/' 

Mr.  Maicy,  Sec.  of  Stati",  to  Mr.  J:ul<sim,  Sopt.  II,  l-.VI.     MS8.  lii.-t.,  Austria. 
See  infra,  ^  19:?. 

"In  all  cases  w^here  indubitable  e\idence  of  citizenship,  either  native 
or  naturalized,  is  presented  (o  the  legation  by  persons  teniporarily  domi- 
ciled in  the  countries  to  which  you  are  accredited,  or  in  transit  through 
them,  either  a  certificate  of  citizenship  or  a  passport,  as  the  circum- 
stances may  require,  may  be  furnished  to  them  by  the  legation.  *    *    * 

"Instances  have  occurred,  and  it  is  hot  imi)robable  that  they  may 
again  be  presented,  in  which  citizens  of  the  United  States  Avho  had 
resided  abroad  for  so  long  a  time,  and  had  fornuHl  conne(!tions,  either 
of  a  commercial  or  family  nature,  so  intimate  and  binding  as  to  render 
them,  as  far  as  they  could  be  without  a  formal  renunciation  of  their  alle- 
giance to  the  United  States,  citizens  or  subjects  of  the  country  in  which 
they  have  been  domiciled,  have  sought  the  protection  of  this  Govern- 
ment, and  claimed  the  privileges  of  its  citizens  when  danger  has  threat- 
ened or  when  violence  has  attacked  their  persons  or  their  interests. 
Such  claims  would,  of  course,  be  entitled  to  consideration,  but  the  Gov- 
ernment would  require  to  be  fully  satisfied  that  citizenship  had  not  at 
any  time  been  disclaimed  or  abandoned  for  selfish  purposes  before  it 
would  feel  bound  to  demand  redress  for  such  claimants.  Interposition 
in  such  cases  would  be  extended  as  a  matter  of  grace,  and  not  of  right. 

"It  may  not  be  amiss  in  this  communication  to  anticipate  the  consid- 
eration of  cases  of  much  more  frequent  and  probable  occurrence.  That 
is,  when  you  are  solicited  to  extend  a  certificate  of  citizenship  or  to 
furnish  a  passport  to  such  persons  as  have  made  formal  declarations 
before  the  competent  authorities  of  the  United  States,  of  their  inten- 
tions to  become  citizens,  but  who  have  not  been  legally  naturalized. 

"As  this  Department  grants  passports  only  to  bona  fide  citizens  of 
the  United  States,  and  as  a  passport  is  nothing  more  than  a  certificate 
of  citizenship,  it  follows,  necessarily,  that  you  can,  with  propriety,  give 
a  passport  neither  to  an  alien  who  may  have  become  domiciled  in  the 
United  States  nor  to  a  foreigner  who  has  merely  declared  his  intention 
to  become  an  American  citizen,  although  both  of  these  classes  of  per- 
sons may  be  entitled  to  some  recognition  by  this  Government.  The 
most  that  can  be  done  by  you  is  to  certify  to  the  genuineness  of  their 
]>apers  when  presented  for  your  attestation,  and  when  you  have  no 
reasonable  doubts  of  their  authenticity.  The  authorities  of  foreign 
states  may  pay  such  respect  to  these  documents  as  they  may  think 

464 


CHAP.  VII.]  PASSPOETS.  [§  192. 

proper.     The  verificatiou  which  should  be  phicecl  upon  the  bade  of  the 
certificate  might  be  in  these  words: 

"  'Legation  of  the  United  States 

'"At . 

'"I  hereby  certify  that,  according  to  the  best  of  my  knowledge  and 
belief,  the  within  document  is  genuine. 

<SEAL  OF  Tnr.)  "  'J     A     P  '  " 

I  legation.  5  v.       .       , 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Peden,  Apr.  10,  1856.     MSS.  Inst.,  Arg.  Kep, 

"It  is  clearly  the  duty  of  the  Secretary  of  State  not  to  authorize 
passports  to  be  '  granted,  issued,  or  verified  in  foreign  countries  by  dip- 
lomatic or  consular  officers  of  the  United  States  to  or  for  any  other 
persons  than  citizens  of  the  United  States.'  If  this  law  apparently 
operates  harshly  upon  persons  who,  by  reason  of  their  declaration  of 
intention  to  become  citizens  of  the  United  States,  suppose  themselves 
entitled  to  the  X)rotectiou  of  its  representative  abroad,  it  is  for  the  law- 
making power  to  determine  whether  it  is  wise  to  change  the  policy  which 
has  so  long  been  established.  While  the  law  remains  as  it  is,  I  can  see 
no  '  official'  protection  which  can  be  extended  to  persons  who  are  not 
citizens  of  the  United  States.  The  granting  of  an  official  certificate 
of  protection,  by  an  officer  of  the  Government  who  is  authorized  to  issue 
such  certificates,  implies  a  committal  of  the  Government  in  advance  to 
enforcing  that  protection  by  official  interference  and  by  other  acts 
which  may  eventually  lead  to  the  employment  of  force*  This  consid- 
eration, taken  in  connection  with  the  clear  provisions  of  law  in  that 
respect  and  with  the  well-defined  policy  of  the  law,  induced  the  De- 
partment to  issue  the  circular  of  October  last,  prohibiting  the  granting 
of  passports  to  any  but  citizens  of  the  United  States." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Washburne,  Oct.  4,  1870.  MSS.  lust.,  France. 
See  Mr.  Fisli,  Sec.  of  State,  to  Mr.  Boker,  Apr.  19, 1872.  MSS.  Inst.,  Tur- 
key;  For.  Eel.,  1872. 

A  passport  will  not  be  granted  to  a  naturalized  citizen  who  may  be 
inferred,  from  long  residence  abroad  and  other  circumstances,  to  have 
abandoned  his  nationality. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Lockwood,  Oct.  27,  1874.  MSS.  Dom.  Let.  See 
Mr.  Fish  to  Mr.  Ehrenbackcr,  June  5,  1875;  ibid.     See  supra,  ^$  176  if. 

"I  am  of  the  opinion  that  any  citizen  of  the  United  States  has  a 
right  to  be  furnished  with  such  evidence  of  citizenship,  and  of  his  right 
to  the  protection  of  his  Government,  as  has  been  adopted  for  that  pur- 
pose, upon  complying  with  the  usual  regulations,  and  that  the  neces- 
sity therefor  is. a  matter  for  the  judgment  of  the  party  himself.  A  pass- 
port duly  issued  is  the  usual  cn  idei)(;e  of  citizenship  in  a  foreign  land. 

"  It  would  therefore  seem  that  tlu^  desire  of  a  naturalized  citizen  to 
be  supplied  with  the  usual  evidence  of  liis  nationality,  in  case  ho  bo 
called  upon  for  military  service,  is  natural  and  entirely  allowable." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Davis,  .Tau.  14,  187.5.     MSS.  Inst.,  Oonn. 
S.  Mis.  102— vol,,  ir :;0  '  405 


§  192.]   crnzENSuip,  naturalization,  and  alienage,  [chap.  vii. 

''According  to  tlie  rules  in  force  iu  j^eiieral  in  tbe  Department  re- 
specting the  issne  of  i)assports,  separate  ])assports  are  issned  to  a  father 
and  bis  two  children  on  a  reqnest  therefor,  or  where  reasonable  cause 
is  shown.  In  fact,  tbe  practice  of  including  several  members  of  the 
same  family  in  one  passport  is  to  save  trouble  and  exi)ense  to  tbe  par- 
ties themselves. 

'•  Wbeie  good  cause  is  shown  therefor,  such  as  the  intended  residence 
of  one  of  a  family  in  a  foreign  land,  or  a  necessity  for  tbe  use  of  a 
passport  for  a  proper  purpose,  it  would  seem  that  the  i)ass]K)rts  might 
well  be  issued  on  making  proper  application  therefor  and  complying 
witb  tbe  usual  regulations." 

Mr.  Fisl),  Sec.  of  Stato,  to  Mr.  Davis,  Nov.  4,  187G.     MSS.  Iu.st.,  Germ. 

"  l\au,  born  of  naturalized  ])arentage,  in  Kansas,  is  taken  to  Europe 
while  a  minor,  marries,  and  establishes  himself  in  Switzerland  ;  not  in 
tbe  country  (Wiirtemberg)  whence  bis  father  emigrated.  Upon  bis 
applying  to  you  for  a  passport  as  an  American  citizen,  you  required 
his  detiuite  declaration  of  intention  to  return  to  tbe  United  States 
within  some  certain  time,  basing  your  requirement  on  tbe  ground  that, 
under  tbe  circumstances  of  Rau's  birtb  and  residence  during  minority, 
bisindefiniteresidence  abroad,  without  evident  intent  to  return, amounts 
to  self-expatriation. 

"  Tbe  i)roper  officers  of  the  Department  bave  given  every  attention  to 
the  case,  botb'as  reported  by  you,  and  upon  tbe  appeal  and  document- 
ary evidence  submitted  by  Mr.  Rau. 

"  It  is  conceived  tbat,  in  applying  to  bis  case  tbe  doctrines  of  repatria- 
tion as  tantamount  under  the  circumstances  to  expatriation,  you  bave 
extended  the  tbesis  you  advance  of  Ban's  citizenship  being  due  to  bis 
father's  naturalization  beyond  tbe  point  wbereit  should  rightfully  rest. 
For,  while  there  may  be  rational  doubt  as  to  whether  Ran  is  a  fjood 
citizen  of  tbe  United  States,  sbaring  alike  tbe  burdens  and  privileges  of 
bis  fellow-citizens,  be  is  still  undoubtedly  a  citizen.  Having  been  born 
bere,  of  a  naturalized  father,  the  question  of  repatriation  would  not  ob- 
tain in  bis  case,  even  if  be  were  permanently  domiciled  iu  Wiirtemberg, 
bis  fatber's  place  of  nativity.  The  Department  holds  that  for  a  native 
American  to  put  ofl"  bis  national  character  be  should  put  on  another. 
Continued  residence  of  a  native  American  abroad  is  not  expatriation, 
unless  be  performs  acts  inconsistent  witb  bis  American  nationality  and 
consistent  only  witb  the  formal  acquirement  of  another  nationality, 
and  tbe  same  rule  bolds  equally  good  in  the  case  of  a  naturalized  citi- 
zen of  tbe  United  States  who  may  reside  abroad  otherwhere  than  in 
tbe  country  of  bis  original  allegiance.  Existing  statutes  confirm  tbe 
principle  by  providing  tbat  citizenship  shall  flow  to  the  children  of 
American  citizens  born  abroad,  tbe  birthright  ceasing  only  Avitb  tbe 
grandchildren  whose  fathers  bave  never  resided  in  tbe  United  States. 
Foreign  residence,  even  for  two  generations,  is,  therefore,  not  neces- 
4G0 


CHAP.  YII.]  PASSPORTS.  [§192. 

saiily  expatriatiou,  iu  the  sense  of  renouncing  original  allegiance,  nor 
is  it  necessarily  repatriation  unless  through  the  conflict  of  laws  of  the 
respective  countries  and  the  conclusion  of  conventional  agreements  be- 
tween them. 

"  If,  therefore,  xMr.  Eau  shall  make  application  in  the  usual  form,  forti- 
fied by  affidavit  and  documentary  evidence  of  his  American  birth,  and 
shall  show  that  he  has  not  forfeited  his  native  allegiance  by  assuming 
another,  the  Department  conceives  that  he  is  entitled  to  a  passport  for 
himself  and  wife. 

"  The  application  of  Mr.  Eau  to  this  Department,  through  the  Hon. 
J.  W.  Stone,  M.  C,  of  Michigan,  was  in  the  nature  of  an  appeal  from 
your  action  in  his  regard,  coupled  with  a  request  that  a  passport  should 
issue  to  him  directly  from  the  Department.  The  rule  which  has  been 
enforced  for  some  years  is  that  '  citizens  of  the  United  States  desiring 
to  obtain  passports  while  in  a  foreign  country  must  apply  to  the  chief 
diplomatic  representative  of  the  United  States  in  that  country.'  There 
is  no  good  reason  why  that  rule  should  not  be  applicable  now,  or  why 
action  should  be  taken  here  which  might  imply  reversal  of  your  decis- 
ion. The  Department  prefers  to  regard  you  as  not  having  refused  a 
passport  to  Mr.  Eau,  but,  rather,  as  having,  through  commendable  zeal 
iu  the  furtherance  of  true  x\merican  interests  abroad,  required  of  the 
applicant  a  declaration  not  technically  necessary,  either  in  view  of  his 
birthplace  or  present  country  of  residence." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Fish,  Oct.  10,  18S0.     MSS.  Inst.,  Switz. ;  For. 
RcL,  1880. 

A  naturalized  citizen  of  the  United  States  who  returns  to  his  country 
of  origin,  and  there  marries,  settles,  and  remains  twenty  years,  is  not 
entitled  to  a  passport  as  a  citizen  of  the  United  States. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Kasson,  Mar.  31,  1881.    MSS.  Inst.,  Anstria. 
Supra,  $  I'tGff- 

When  an  Austrian  subject,  after  being  naturalized  in  the  United 
States,  returns  to  his  country  of  origin  on  a  passport  dated  Juno  17, 
1881,  and  there  resides  four  years,  and  then  applies  for  a  new  pass- 
port, such  passport  "ought  not  to  be  granted  without  proof  that  this 
residence  was  meant  by  him  to  be  temjiorary  and  exceptional,"  and  iu 
such  case  it  would  be  proper  that  the  applicant  should  bo  personally 
examined. 

Mr.  Bayard,  Sfc.  of  State,  to  Mr.  Loo,  Oct.  2,  188.'),-  ibid 

"As  your  archives  will  show,  and  as  you  are  doubtless  aware,  in  Au- 
gust, 1879,  this  Government  sent  circular  instructions  to  all  our  minis- 
ters abroad  to  request  all  i)roper  assisiance  from  the  Governments  lo 
which  they  were  accredited  in  suppressing  the  proselyting  for  the  Mor- 
mon church.  In  the  face  of  such  a  circular  it  would  seem  to  be  incon- 
sistent to  issue  passj)orts  to  persons  who  are  undoubtedly  Mormon  omis- 

407 


\^  192.]   cmzEssnip,  xatukalization,  am  Ai-i£.>AGE.  [chap.  vii. 

saries,  even  if  rbey  are  A  <.  The  law  as  to  issuing  pass- 
ports is  permissorr,  no:  .  ^  .  the  decision  is  lelt  with  the 
Secretary  of  State,  under  section  4075  of  the  Revised  Statutes.  Inas- 
much a-  '  _  is  a  statutory  crime.  -  '  ism  with  intent  that 
theem:_  --  1  live  here  in  open  vi-  our  laws  would  j^eeni 
to  be  sufficient  warrant  for  refusing  a  passport.  But  it  would  be  well 
to  have  the  fact  of  t^  ■ ' '  ant  for  the  passport  being  a  Mormon  emis- 
sary, and  actually  t    a  proselyting,  conclusively  proved  to  your 

satisfaction  by  some  kind  ot  evidence  which  can  be  put  on  the  files  of 
your  legation  and  this  Department.  This  might  be  obtained,  perhaps, 
from  the  police  authoriries  or  the  public  press  iu  case  any  meetings  were 
held  for  the  object  of  inciting  to  emigration.  It  is  noticeil  that  in  your 
report  of  the  case  you  did  not  give  the  applicant's  name.  It  would  be  as 
well  to  obtain  in  all  such  cases  of  refusal  of  passport  application,  a  de- 
tailed statement  from  the  applicant,  duly  signed  and  sworn  to,  in  sup- 
port of  his  application,  a  copy  of  which  can  then  be  forwarded  to  this 
Department  for  its  action  and  to  refer  to  in  case  the  application  is  re- 
newed here." 

sir.  BaTsrvL  Sec.  of  State,  to  Mr.  Magee, Xov.  3, 1^S5.    MSS.  Inst.,  Sweden. 

•'  Passports  are  to  be  issued  only  to  citizens  of  the  United  States,  and 
are  to  be  numbered,  commencing  with  Xo.  1,  and  so  continuing  consec- 
utively until  the  end  of  the  incumbent's  term  of  office.  For  a  diplo- 
matic or  consular  officer  to  issue  a  passport  to  a  person  not  a  citizen 
of  the  United  States  is  a  penal  offense  punishable  on  conviction  by 
imprisonment  not  exceeding  one  year,  or  by  a  fine  not  exceeding  ^oOO. 
or  both.  Persons  who  have  :  '  '  '  :ed  their  intentions  to  become 
citizens  are  not  in  the  full  .-  ■;  of  the  United  States  within 

the  _  of  the  law.    P:  ..«:  uothing  herein  contained  is  to 

be  •-  ■  as  in  any  wny  _     ,  the  right  of  persons  domiciled  in 

the  Vl  -'  "es,  bnt  :  ed  therein,  to  maintain  iuterna- 

tionaliy  .itus  of  c  :o  claim  protection  from  this  Gov- 

ernment in  the  maintenance  oi  such  status." 

Printed  Fers.  Inst.,  Dip.  Agents,  18S5.    See  9  Op.,  ;^-5'.'..  iilack,  l~oy. 

'•When  an  apy-'^  -^  ':  is  made  for  a  passport  by  a  native  citizen,  before 
it  be  granted  tL  :t  must  make  a  written  declaration  under  oath, 

stating  his  name  ::.  r^.:.  age.  '  ze  of  birth,  supported  also,  if  ix)s- 
sible.  by  the  affidavit  of  a  c:  person,  to  whom  the  applicant  is 

-       "    '         D.  and  to  the  ^e^:  c:  whose  knowledge  and  belief  the 
:^'.  and  the  rr^inister  oron^il  tt! ay  require  such  other 
tvulence  as  Lc  :  ry  toes'  •?  applicant's  citizen- 

ship.   If  the  ai  be  a  nil  .  citizen,  he  shall  also 

produce  the  original  or  certined  copy  of  lue  decree  of  the  court  by 
which  he  was  declared  to  be  a  citizen  :  and  it  is  the  duty  of  the  min- 
ister or  consul,  at  the  close  of  each  half  year,  to  transmit  to  the  De- 
partment a  statemeT'*  ■■^  "^  -  evidence  on  which  all  such  passports  were 
issue<l  or  granted.   T  ant  should  also,  in  both  cases,  be  requiretl 

to  take  the  oath  of  c...r_  ..i^-.e,  and  the  oath  should  l3e  transmitte<l  to 
the  Dep>artment  with  the  half-yearly  return.  A  passport  issued  from 
this  Department,  coupled  with  the  proof  that  the  person  in  whose  be- 
half it  is  presente'l  is  the  person  named  therein,  may  be  taken  as prjowc 

4GS 


CUAr.  VII. ]  PASSPORT.^  [§  192. 

facie  evidence  of  the  citizenship  of  the  applicant;  within  two  rears  from 

its  date. 

"It  is  understood  that  persons  present  themselves  in  some  foreign 
countries  to  the  diplomatic  or  consular  representatives  of  this  Govern- 
ment with  certificates  of  citizenship  issued  by  a  local  or  municipal  offi- 
cer, such  as  the  mayor  of  a  city,  or  a  notary  public,  with  a  view  to  be 
registered  as  American  citizens,  that  they  may  travel  under  the  protec- 
tion of  such  certificates.  The  laws  of  the  ITnited  States  permit  the 
Secretary  of  State  alone  to  grant  or  issue  passports  in  the  United 
States,  and  prohibit  all  persons '  acting,  or  claiming  to  act,  in  any  office 
or  capacity  under  the  United  States  or  any  of  the  States  of  the  United 
States,  who  shall  not  be  lawfully  authorized  so  to  do,'  from  granting 
or  issuing  '  any  passport  or  ofh^r  instrument  in  the  nature  of  a  passport. 
to  or  for  any  citiztn  of  the  United  States,  or  to  or  for  any  person  claim- 
ing to  be,  or  designated  as  such,  in  such  passport  or  verification.^  Such 
certificates,  therefore,  have  no  legal  validity,  and  are  not  to  be  recog- 
nized. An  instrument  issued  by  an  unauthorized  person  substantially 
in  the  form  used  by  the  Department  of  State  is  within  the  letter  and 
intent  of  the  prohibition  of  the  statute.  It  is  not  material  whether  such 
instruments  are  issued  in  foreign  countries  or  in  the  United  States,  and 
the  prohibition  applies  equally  to  State,  municipal,  or  Federal  officers. 

"  When  the  applicant  for  a  passport  is  accompanied  by  his  wife,  minor 
child,  or  servants,  it  will  be  sufficient  to'state  in  the  passport  the  names 
of  such  persons,  and  their  relationship  to  or  connection  with  him.  A 
separate  passport  must  be  issued  for  each  person  of  full  age,  not  the 
wife  or  serranc  of  another,  with  whom  he  or  she  is  traveling. 

"  It  is  provided  by  law  that  '  all  children  born  or  hereafter  bom  out 
of  the  limits  and  jurisdiction  of  the  Untted  States,  whose  tathers  were 
were  or  may  be,  at  the  time  of  their  birth,  citizens  thereof,  are  to  be 
declared  to  be  citizens  of  the  United  States  ;  but  the  rights  of  citizen- 
ship shall  not  descend  to  children  whose  fathers  never  resided  in  the 
United  States.'  That  the  citizenship  of  the  father  descends  to  the 
children  born  to  him  when  abroad,  is  a  generally  acknowledged  prin- 
ciple of  international  law. 

"  It.is  further  provided  by  law  that  any  woman  (who  might  lawfully 
be  naturalized  under  the  existing  laws),  married,  or  v\ho  shall  be  mar- 
ried, to  a  citizen  of  the  United  States,  shall  be  deemed  and  taken  to  be 
a  citizen.  The  recognition  of  this  citizenship  wi;l  be  subject  to  the 
qualification  above  referred  to.  It  is  also  provided  (Rev.  Stat.,  §  216S) 
that  when  any  alien  who  has  made  declaration,  dies  before  he  is  actually 
naturalized,  the  widow  and  children  of  such  alien  shall  be  considered 
as  citizens  of  the  Uniteil  States  upon  taking  the  oaths  prescribed  by 
law." 

Prini-ed  Pers.  Inst.  Dip.  Agents,  1885.     See  $upra,  $  15.3. 

The  followiug  general  instmctioDS  in  rejrarJ  to  passports  were  issncd  by  tbe  De- 
partment of  State  of  the  United  States  on  May  1,  l-^o: 

''Citizens  of  the  United  States,  visitiujj  foreign  countries,  may  be  liable  to  incon- 
venience if  unprovided  with  authentic  pnxif  of  their  national  character.  This  may 
be  avoided  by  a  passport  from  this  Department,  certifying  the  bearer  to  l>e  a  citizen 
of  tlie  United  States.  Passports  are  issued  only  to  citizens  of  the  United  States,  upon 
application  supported  by  proof  of  citizenship. 

"Citizenship  is  acquired  by  nativity,  by  naturalization,  by  descent,  and  by  annexa- 
tion of  territory.  (13  Op.  Att'y  Gen..  .TJ?.)  An  alien  woman,  who  marries  a  citircn 
of  the  United  .*»tates,  thereoy  beci>iiii's  a  cinz«'n.  Minor  children,  resident  in  t.;< 
United  .States,  become  citizens  by  the  naturalization  of  their  father.  Children  luta 
•bro.'ul  to  citizens  of  the  United  States  partake  of  their  father's  nationality. 

4C9 


§192.]     CrnZENSIIir,  NATURALIZAIIOX,  AND  ALIENAGK.    [C11A1\  Vlf. 

"  Whcu  llio  applicant  is  a  native  citizeu  of  tbo  United  Stales  he  uinst  transmit  bis 
own  aflitlavit  of  this  fact,  stating  liis  age  auti  place  of  birth,  with  tbo  aflidavit  of  one 
other  citizrn  of  the  United  States  to  whom  ho  is  personally  known,  stating  that  the 
dechiration  made  by  the  applicant  is  trno.  These  allidavits  must  be  attested  by  a 
notary  public,  under  his  signature  and  seal  of  oflice.  AVbeu  there  is  no  notary  in  the 
place,  the  aflidavits  may  bo  made  before  a  justice  of  the  i)eaco  or  other  ollicer  author- 
ized to  administer  oaths;  but  if  such  oflicer  has  no  seal,  his  ollicial  act  must  be  au- 
thenticated by  certificate  of  a  court  of  record. 

"A  person  born  abroad,  who  claims  that  his  father  was  a  native  or  naturalized  cit- 
izen of  the  United  States,  must  state  in  his  allidavit  that  bis  father  was  born  or 
naturalized  in  tiie  United  States,  has  resided  therein,  and  was  a  citizen  of  the  same  at 
the  time  of  the  ajiplicant's  birth,  and  that  the  applicant  intends  to  reside  in  the 
United  States,  (1:5  Op.  Att'y  Gen.,  89.)  This  affidavit  must  be  supported  by  that  of 
one  other  citizen  acquainted  with  the  facts. 

"If  the  applicant  be  a  naturalized  citizen,  his  certificate  of  naturalization  nnist  bo 
transmitted  for  inspection  (it  will  bo  returned  with  the  passport),  and  ho  must  state 
in  his  allidavit  that  he  is  the  identical  person  described  in  the  certificate  presented. 

"Passports  cannot  bo  issued  to  aliens  who  have  only  declared  their  intention  to 
become  citizens. 

"  Military  service  docs  not  of  itself  confer  citizenship.  A  person  of  alien  birth, 
who  has  been  honorably  discharged  from  military  service  in  the  United  States,  1)ut 
who  has  not  been  naturalized,  should  not  transmit  his  discharge  paper  in  ap])lication 
for  a  passport,  but  should  apjdy  to  the  proper  court  for  admission  to  citizensiiip,  aud 
transmit  a  certified  copy  of  the  record  of  such  admission. 

"lu  issuing  passports  to  naturalized  citizens,  the  Department  will  bo  guided  by  the 
naturalization  certificate;  and  the  signature  to  the  application  and  oath  of  allegiance 
should  conform  in  orthography  to  the  applicant's  name  as  written  in  the  naturaliza- 
tion paper. 

"Tlio  wife  or  widow  of  a  uaturalizefl  citizen  must  transmit  the  naturalization  cer- 
tificate of  the  husband,  stating  in  her  aflidavit  that  she  is  the  wife  or  widow  of  the 
person  described  therein. 

"The  children  of  a  naturalized  citizen,  claiming  citizenship  through  the  father, 
must  transmit  the  certificate  of  naturalization  of  the  father,  stating  in  their  affida- 
vits that  they  are  children  of  the  person  described  therein,  and  were  minors  at  the 
time  of  such  naturalization. 

"  The  oath  of  allegiance  to  the  United  States  will  be  required  in  all  cases. 

"The  application  should  bo  accompanied  by  a  description  of  the  person,  stating 
the  following  particulars,  viz  : 

"Age:  years.     Stature:  feet,  inches  (English  measure).    Fore- 

head: .     Eyes:  .    Nose:  .     Mouth:  .     Chin:  .     Hair: 

.     Complexion :  .     Face : 

"  If  the  applicant  is  to  be  accompanied  by  his  wife,  minor  children,  or  servants,  it 
■will  be  suflicient  to  state  the  names  and  ages  of  such  persons  and  their  relationship 
to  the  applicant,  when  a  single  passport  for  the  whole  will  suffice.  For  any  other 
person  in  the  party,  a  separate  passport  will  be  required.  A  woman's  passport  may 
include  her  minor  children  and  servants.  Though  separate  passports  may  be  granted 
to  different  members  of  a  family  when  good  cause  is  shown  therefor,  separate  pass- 
ports must,  in  every  case,  be  granted  for  adult  children, 

"  By  act  of  Congress,  approved  June  20,  1874,  a  fee  of  five  dollars  is  required  to  be 
collected  for  every  citizen's  passport.  That  amount  should  accompany  each  applica- 
tion. Postal  money  orders  and  bank  checks  should  bo  payable  to  the  disbursing 
clerk  of  tho  Department  of  State.  Checks  to  be  available  for  the  full  amount  must 
be  drawn  on  banks  at  principal  business  centers.  Individual  checks  must  be  certified 
by  the  banks  upon  which  they  are  drawn. 

"A  passport  is  good  for  two  years  from  its  date  and  no  longer.  A  new  one  may  be 
obtained  by  stating  tho  date  and  number  of  the  old  one,  paying  the  fee  of  five  dollars, 
and  furnishing  satisfactory  evidence  that  tho  applicant  is  at  the  time  within  tho 
United  States.  The  oath  of  allegiance  must  also  be  transmitted  when  tho  former 
passport  was  issued  iirior  to  1861. 

"Citizens  of  the  United  States  desiring  to  obtain  passports  while  in  a  foreign  coun- 
try must  ai)ply  to  Ihe  chief  diplomatic  representative  of  the  United  States  in  that 
country',  or,  in  the  aljsence  of  a  diplomatic  representative,  then  to  the  consul-general, 
if  there  be  one,  or,  in  the  absence  of  both  the  officers  last  named,  to  a  consul.  A 
naturalized  citizen  so  applying  abroad  must  state  under  oath  that  his  absences  since 
his  naturalization  have  been  such  as  not  to  work  an  abandonment  of  his  nationality 
and  that  he  expects  to  return  to  the  United  States  as  his  domicile  and  final  abode. 

"  Passports  cannot  be  lawfully  issued  by  State  authorities,  or  by  judicial  or  munic- 
ipal functionaries  of  the  United  States  "(IJcv.  Stat.,  $  4075),  and  it  is  made  a  penal 
offense  for  unauthorized  pensons  to  grant  any  passport  or  other  instrument  in  tho 
nature  of  a  passi")ort. 

470 


CfiAP.  VII.]  PASSPORTS.  [§  193. 

"To  peisoDS  wishing  to  obtain  passports  for  themselves,  blank  forms  of  application 
will  be  furnished  by  this  Department  on  request,  stating  whether  the  applicaut  be  a 
native  or  a  naturalized  citizen.  Forms  are  not  furnished,  except  as  samples,  to  those 
who  make  a  business  of  procuring  passports. 

"  Communications  should  be  addressed  to  the  Department  of  State,  indorsed  'Pass- 
port Division,'  and  each  communication  should  give  the  i)ost-office  address  of  the 
person  to  whom  the  answer  is  to  be  directed. 

"  Professioual  titles  will  not  be  inserted  in  passports. 

"The  issuing  of  passports  is  at  the  discretion  of  the  Secretary  (Rev.  Stat.,  §  4075), 
and  they  will  not  be  granted  to  persons  engaged  in  violation  of  the  laws  of  the  United 
States,  e.  g.,  Mormon  i)ropagandists. 

"  The  refusal  to  grant  a  passport  except  on  proof  of  citizenship,  is  not  to  be  regarded 
as  inconsistent  with  the  position  that  the  Department  will  extend  to  persons  domiciled 
in  the  United  States,  though  not  citizens,  such  rights  as  belong  to  them  by  interna- 
tional law." 

Where  application  was  made  to  the  Department  of  State  for  pass- 
ports for  five  persons  resicliug  in  the  island  of  Curagoa,  four  of  whom 
were  born  in  that  island  and  one  in  the  island  of  Saint  Thomas,  and 
all  of  whom  were  children  of  native  citizens  of  the  United  States,  but 
it  did  not  appear  that  any  of  the  applicants  had  ever  resided  or  in- 
tended to  reside  in  the  United  States,  it  was  advised  that  the  appli- 
cants are  not  entitled  to  passports. 
13  Op.,  89,  Hoar,  18G9. 

Where  persons  born  abroad  claim  passports  as  citizens  of  the  United 
States,  founded  ou  an  alleged  Texan  citizenship  at  the  time  of  annex- 
ation, they  may  be  deemed  citizens  of  the  United  States  and  entitled  to 
pas.sports  as  such  sliould  they  be  found  to  belong  to  any  of  the  classes 
of  Texas  citizens  made  citizens  of  the  United  States  under  the  statute 
of  annexation. 

13  Op.,  397,  Akerman,  1871.     See  supra,  ^  Aff,  187  JT- 

The  laws  of  the  United  States  authorize  the  issue  of  passports  to  all 
citizens  thereof,  without  distinction,  whether  native-born  or  natural- 
ized. 

15  Op.,  114,  Taft,  187G. 

(3)   QUALIFIKD  PASSPOUTS  AND   PUOTECTION  PAPEUS. 
§193. 

"  With  respect  to  the  certificates  of  courts  of  justice  in  favor  of  per- 
sons who  have  declared  their  intention  to  become  citizens,  the  case  is 
in  some  degree  different.  They  have  taken  the  i)reliminary  step  to- 
wards naturalization,  and  seem  to  be  entitled  to  some  recognition  of  that 
step.  While  you  cannot  grant  them  pas.sports  as  citizens,  there  is  no 
impropriety  in  authenticating  their  certificates  by  the  usual  counter- 
sign. It  will  be  for  the  l-Airopean  powers  to  i)ay  such  resjjcct  to  the 
document  as  tiiey  think  projier.  Tlie  i)a.s.sport  it.self  is  but  a  request  to 
foreign  GovernmentH  to  allow  the  bearer  to  enter  and  pass  through  their 
dominions,  and  urgent  reasons  of  state  warrant  them  in  refusing  to  do 
80.     No  just  offense  could  be  taken  by  the  United  States  if  the  certi* 

471 


§  193.]     CITIZENSHIP,  NATUHALIZATIOX,  AND  ALIENAGE.    [cilAP.  Vlt. 

ficates  in  question  slioukl  prove  of  little  value  to  the  boklei".s.  In  all 
common  cases,  however,  they  would  probably  prove  as  valuable  as  pass- 
ports ;  and  as  those  who  obtain  them  have  disabled  themselves  from 
procuring  i)assports  from  their  own  Governments,  thej'  seem  to  have 
some  claim  to  all  the  aid  in  this  way  which  mo  ran  with  ])r()pricty  fjivo 
them." 

Mr,  Everett,  Sec.  of  State,  to  Mr.  lugcrsoll,  Dec.  21,  LSoS.  MSS.  Inst.,  Gr.  Brit. 
See  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Jackson,  Sept.  14,  18ri4,  quoted  supra, 
^  19-i. 

"If  he  goes  abroad  with  papers  showing  that  he  has  declared  his 
intention  to  become  a  citizen  of  the  United  States,  and  presents  them 
to  our  ministers,  they  are  required,  if  they  think  the  documents  genuine, 
to  make  an  indorsement  on  them  to  that  effect  unless  such  ministers 
have  reason  to  believe  that  such  intention  has  been  abandoned.  If  a 
person  has  been  here  and  declared  his  intention  to  become  a  citizen, 
and  afterwards  leaves  this  country,  goes  to  another  and  there  takes  up 
his  permanent  abode,  his  connection  with  the  United  States  is  dissolved, 
and  consequently  his  intention  to  become  a  citizen  of  thereof  must  be 
adjudged  to  have  been  abandoned.  By  such  a  course  of  conduct  his 
previous  declaration  ceases  to  b(?  available  for  any  purpose  whatever; 
and  our  ministers  and  functionaries  abroad  would  not  be  warranted  in 
such  a  case  to  do  an^'  act  to  give  it  effect.    *     *     * 

"  Where  a  person  with  a  fair  intent  has  made  his  declaration  and  goes 
abroad  for  a  purpose  not  inconsistent  with  the  object  of  that  declara- 
tion, and  our  ministers  have  certified  to  the  genuineness  of  the  evidence 
he  takes  with  him  of  that  fact,  this  Government  has  done  all  that  can 
be  required  or  reasonably  expected  of  it  in  such  a  case.  I  do  not  sec 
what  more  it  can  do  for  the  person  so  situated  in  case  other  Govern- 
ments refuse  to  give  the  same  effect  to  such  papers  as  they  usually  give 
to  regular  passports  in  the  hands  of  one  of  our  citizens." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Baclianau,  Apr.  i:],  1854.     MSS.  Inst.,  Gr.  Brit. 

"  This  Government  cannot  rightfully  and  does  not  claim  from  foreign 
powers  the  same  consideration  for  a  declaration  of  intention  to  become 
a  citizen,  as  for  a  regular  passport.  The  declaration,  indeed,  is  prima 
facie  evidence  that  the  person  who  made  it  was  at  its  date  domiciled  in 
the  United  States,  and  entitled  thereby,  though  not  to  all,  to  certain  rights 
of  a  citizen,  and  to  much  more  consideration  when  abroad  than  is  due 
to  one  who  has  never  been  in  our  country ;  but  the  declarant  not  being 
a  citizen  under  our  laws,  even  while  domiciled  here,  cannot  enjoy  all  the 
rights  of  citizenship  either  here  or  abroad.  He  is  entitled  to  our  care, 
and  in  most  circumstances  we  have  a  right  to  consider  him  as  under 
our  protection,  and  this  Government  is  disposed  and  ready  to  grant  him 
all  the  benefits  he  can  or  ought  to  receive  in  such  a  situation.  If  such 
individual,  however,  aftewards  leaves  this  country,  goes  to  another, 

•ITLI 


ClTAr.  Vir.]  PASSPOETS.  [§1^'^ 

aud  there  takes  up  liis  permauent  abode,  bis  couuection  with  the 
United  States  is  dissolved,  and  his  intention  to  become  a  citizen  must 
be  considered  to  have  been  abandoned.  Under  the  circumstances  the 
previous  declaration  ceases  to  be  available  for  any  purposes  whatever. 
But  when  a  person,  with  a  fair  intent,  has  made  his  declaration,  and 
goes  abroad  for  any  purpose  not  incompatible  with  the  objects  of  the  de- 
claration, and  the  legation  has  certified  to  the  genuineness  of  his  papers, 
the  Government  of  the  United  States  has  done  all  that  can  be  required 
or  reasonably  expected,  and  can  have  no  just  cause  of  complaint  if  other 
Governments  see  fit  to  refuse  to  give  the  same  effect  to  such  papers  as 
they  usually  give  to  regular  passports  iu  the  hands  of  our  citizens." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Seibels,  May  27,  1854.  MSS.  lust.,  Belgium. 
See  to  same  effect  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Clay,  Dec.  28,  1854. 
MSS.  Inst.,  Pern. 

"Even  though  an  alien  or  foreigner  may  have  become  domiciled  in 
the  United  States,  or  may  have  declared  his  intention  to  become  an 
American  citizen,  he  is  not  entitled  to  a  passi)ort  declaring  him  to  be 
an  American  citizen,  although  both  of  these  classes  of  persons  may  be 
entitled  to  some  recognition  by  this  Government.  The  most  that  can 
be  done  by  you  for  them,  however,  is  to  certify  to  the  genuineness  of 
their  papers  when  presented  for  your  attestation,  and  wheu  you  have 
no  reasonable  doubts  of  their  authenticity.  And  to  this  simple  certifi- 
cate, that,  to  the  best  of  your  belief,  the  documents  in  question  are 
genuine,  the  European  authorities  are  at  liberty  to  pay  such  respect  as 
they  think  proper." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Fay,  May  27,  1854.  MSS.  Inst.,  Switz.  Simi- 
lar instructions  were  sent  to  other  of  our  representatives  abroad  at  about 
this  time.  See  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Pcdcn,  Apr.  10, 1856.  MSS. 
Inst.,  Arg.  Rep.,  quoted  supra,  §  192. 

"As  this  Department  grants  passports  to  citizens  of  the  United  States 
only,  it  certainly  recognizes  in  its  representatives  abroad  no  authority 
to  grant  them  to  such  as  are  not  citizens.  At  the  same  time,  it  does  not 
deny  to  them  the  right  of  extending  a  certain  degree  of  protection  to 
those  possessing  only  the  inchoate  rights  of  citizenship.  The  nature 
aud  extent  of  this  protection,  however,  must  dei)end  in  a  great  degree 
upon  circumstances;  and  these  will  vary  with  almost  every  case.  Thus 
a  foreigner  who  comes  to  tliis  countrj^  and,  renouncing  all  allegiance  to 
any  other  power,  declares  his  intention  of  becoming  a  citizen,  and  after- 
wards returns  to  the  country  of  his  birth  for  a  temporary  purpose  only, 
not  losing  his  domicile  here,  is  clothed  with  a  nationality  which  entitles 
him  to  a  greater  degree  of  protection  than  could  properly  bo  extended 
to  one  who,  as  in  the  case  of  Mr.  W.,  after  declaring  his  intention  to 
become  a  citizen  of  the  United  States,  shortly  after  departs  therefrom, 
iiml  rcinainM  abrf»ad  a  snfhcicnt   length  of  time  tt)  warrant  the  belief 

473 


§  193.]  ciTizENsnir,  naturalization,  and  alienage,   [chap.  vii. 

that  be  has  either  abaiuloiicd  Hint  iiitt'iition  or  is  iiiditierent  about  car- 
rying it  into  eflect." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Viooin,  Jul;  7,  l^')\.     MSS.  Inst.,  Prussia. 
Ah  to  privileges  ofdomicil,  seo  infra,  $  198. 

"Passports  are  Ihe  only 'protection  papers'  known  in  the  law,  or 
sanctioned  in  this  Department.  What  are  technically  called  'protec- 
tion papers'  are  used  in  our  international  intercourse  with  uncivilized 
nations.  Protection  papers  are  a  feature  in  the  principle  of  asylum, 
which  we  ujaintain  with  barbarous  or  semi-civilized  states,  but  nowhere 
else." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Asbotli,  Mar.  27,  1867.     MSS.  Inst.,  Arg.  Rep. 
See  instructions  of  Mr.  Cass,  Aug.  13,  1858.     MSS.  Inst.,  Barb.  Powers. 

Special  passports,  accompanying  letters  of  introdnction  to  the  diplo- 
matic representatives  of  the  United  States,  may  be  issned  in  special 
cases. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Key,  Apr.  18,  1879.     MSS.  Dom.  Let. 

The  meaning  and  interpretation  of  section  1G3,  Consular  Regulations, 
"seems  very  plain  and  obvious.  In  cities  or  towns  in  Germany  where, 
for  purposes  of  identification,  sojourning  foreigners  are  re(iuired  by  the 
local  laws  or  municipal  regulations  to  deposit  their  passports  with  the 
police  or  other  local  authorities,  as  is  understood  to  be  the  case  in  Uam- 
burg,  Berlin,  and  generally  in  cities  and  towns  throughout  Germany, 
'a  consular  certificate  may  be  granted  setting  forth  the  facts  as  oppear- 
ing  from  the  passports,  but  only  with  a  view  of  com])lying  with  the  law 
or  regulation.' 

"  The  i^erson  seeking  such  certificate  there  must  i)resent  to  the  con- 
sul a  passport,  and  the  passport  must  not  be  over  two  years  old.  The 
certificate  should  be  confined  in  its  statements  to  'the  facts  appearing 
from  the  i)assport.'  It  should  also  state  the  time  at  which  it  (the  certifi- 
cate) will  cease  to  be  eficctive,  which  time  is  to  be  limited  by  the  date 
at  which  the  passport  will  be  two  years  old,  and  it  should  also  state  ex- 
pressly and  explicitly  that  it  is  only  to  be  used  in  the  locality  where  it 
is  issued,  and  there  only  for  the  purpose  of  compliance  with  the  local 
laws  and  regulations  of  such  locality.  Moreover,  in  no  case  is  such  con- 
sular certificate  to  take  the  place  of  or  to  be  used  in  lieu  of  a  passport." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Sargent,  July  2G,  lb'83.     MSS.  Inst., 
Germ. 

"  The  habit,  therefore,  of  obtaining  transit  passes  by  American  citizens 
for  Chinese  principals,  to  secure  for  them  advantages  to  which  they  are 
not  entitled  by  the  laws  of  their  own  country,  is  such  an  abuse  of  the 
privilege  as  not  only  to  justify  the  Chinese  authorities  in  refusing  to 
recognize  such  passes  when  irregnlarly  issued  or  obtained,  but  also  in 
declining  to  grant  additional  ones  to  those  found  guilty  of  such  prac- 
tices." 

Mr.  Frclinghuysen,  Sec.  of  State,  to  Mr.  Young,  Aug.  8, 1884.    MSS.  Inst.,  China, 
474 


CHAP.  VII.]  PASSPORTS.  [§  193. 

'^TLe  Biitisli  treaty  of  1858  provides  that  'British  subjects  may 
travel  for  their  pleasure  or  for  purposes  of  trade  to  all  parts  of  the  in- 
terior, under  passports,  which  will  be  issued  by  their  consuls  and  coun- 
tersigned by  the  local  authorities.' 

"Xow  these  so-called  passports,  issued  under  the  British  treaty 
(which  we  under  the  most-favored-nation  clause  have  a  right  to  invoke), 
are  not  passports  in  the  international  sense,  but  local  certificates  or 
passes  granting  permission  to  the  bearer  thereof  to  go  into  the  interior 
from  the  treaty  port  where  they  were  issued. 

"  These  certificates  derive  their  validity  from  joint  issuance  by  the 
consul  and  the  local  Chinese  authority,  but  the  initiative  in  issuing  them 
belongs  to  the  consul,  and  the  Chinese  cannot  refuse  to  countersign 
them. 

"  These  certificates  are  moreover  not  merely  temporary  and  local,  but 
are  limited  to  the  particular  journey  to  be  undertaken  in  China.  When 
the  specified  time  expires,  or  the  journey  is  performed,  the  certificate 
loses  validity  and  another  must  l)e  issued  if  the  bearer  wishes  to  con- 
tinue in  the  interior  or  make  another  journey  thither. 

"All  this  points  to  an  instrument  which  supplements  an  ordinary 
general  passport  which  every  nation  has  the  indei)endent  right  to  issue 
to  its  subjects  and  which  other  nations  may  disregard  at  their  peril. 

'^  The  Chinese  certificates  are  at  the  most  merely  transit  passes. 

"  We  have,  however,  decided  many  times  that  no  such  pass  or  certifi- 
cate, which  carries  on  its  face  recognition  of  the  bearer's  nationality, 
can  be  issued  in  lieu  of  a  regular  passport  as  i)rescribed  by  statute. 

"  It  is  not,  however,  to  be  expected  that  an  American  citizen  is  to  be 
required  to  take  out  a  new  passport  every  time  he  journeys  more  than  30 
miles  inland  from  a  treaty  port,  and  be  compelled  to  pay  $5  each  time. 

"  The  true  solution  would  seem  to  be  to  provide  for  the  issuance  by 
the  consuls  of  a  form  of  limited-transit  certificates,  but  only  on  presenta- 
tion of  a  passport  previously  issued  by  the  legation,  or  upon  filing  a 
duly  attested  application  for  a  passport  with  evidence  of  citizenship 
accompanied  bj'  the  legal  fees." 

Mr.  Frelingliuyben,  Sec.  of  Stato,  to  Mr.  Young,  Jau.  19, 1885.    MSS.  Inst.,  China. 

"This  Department  has  received  a  dispatch  of  the  20th  ultimo,  from 
the  United  States  consul  at  Beirut,  stating  that  the  Turkish  bureau  of 
nationality  at  Constantinople,  had  recently  declined  to  certify  to  the 
American  citizenship  of  Messrs.  K.  G.  and  B.,  on  the  ground  that  their 
passports  did  not  show  that  they  left  the  Ottoman  Empire  prior  to  the 
protiuilgation  of  the  law  of  18G1>,  forbidding  Turkish  subjects  to  leavyi 
tlie  country  without  pernii.ssion  to  become  naturalized  in  another  coun- 
f  ry.  The  refusal  referred  to,  for  the  reason  alleged,  seems  so  extraor- 
dinary, at  least,  that  you  will  protest  against  it,  and  endeavor  to  have  it 
corrected  so  far  as  it  ujay  have  been  or  may  be  ap[)Iied  to  the  persons 
above  referred  to. 

475 


\N  lUo.J   crnzENsnrr,  naturalization,  and  alienage,  ["ciiap.  vh. 

"  T*assports  aro  issued  by  this  Dopartmeut  to  naturalized  citizens  upon 
the  production  of  the  certificate  of  naturalization.  There  is  no  law  of 
the  United  States  requiring  a  passport  to  state  when  a  naturalized  cit- 
izen left  the  country  of  his  birth,  or  to  embody  that  statement  in  the 
passport.  It  has  not  been  the  practice  of  this  ]^epartment  to  insert 
such  a  statement  in  the  passports  issued  to  former  Turkish  subjects  or 
to  any  other  naturalized  citizens.  A  different  course  might  imply  that 
the  right  of  the  foreign  Government  to  participate  in  or  to  make  the 
naturalization  of  its  subjects  conditional  was  acknowledged  here.  This 
it  has  never  been  and  probably  never  will  be. 

"  The  Turkish  law  referred  to  also  seems  to  be  defective  or  ambiguous, 
inasmuch  as  it  assumes  that  every  Ottoman  subject  who  leaves  his  native 
country  has  an  intention  to  become  naturalized  elsewhere.  If  this  be  the 
meaning  of  the  law,  it  must  be  contrary  to  facts  of  daily  occurrence  in 
that  Empire.  It  may  be  that  Turks,  in  proportion  to  their  number,  do 
not  travel  as  much  as  inhabitants  of  other  countries.  Still,  it  is  believed 
that  comparatively  few  of  those  who  do  go  abroad  leave  home  for  the 
purpose  of  changing  their  nationality." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Emmet,  May  29,  1885.     M*SS.  Inst.,  Turkey; 
For.  Rel.,  1885. 

"Where  the  object  is  to  obtain  a  passport  for  an  insane  person,  the 
application  may  be  made  and  proper  papers  presented  by  the  guardian 
or  nearest  friend  of  the  person  in  question.  "Even  were  this  not  the 
case,  the  regulations  in  regard  to  issuing  passports  are  not  imposed  by 
Congress,  but  are  discretionary  with  the  Executive,  and  may  at  any  time 
be  interpreted  or  modified  by  the  Department  of  State.  They  should 
certainly  not  be  applied  in  such  a  way  as  to  exclude  from  a  passport 
persons  by  whom  it  may  be  most  needed,  as  in  the  present  case." 

Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Wiuclieater,  Sept.  14, 1885.     MSS.  Inst., 
Switz.;  For.  Eel.,  1885. 

"  Complaints  have  from  time  to  time  reached  the  Department  of 
State  of  the  issue  of  i)assports,  or  papers  in  the  nature  of  passports, 
by  consular  officers,  when  prohibited  from  doing  so.  In  future  it  will 
be  required  that  diplomatic  officers  shall  make,  in  addition  to  the  re- 
turn hereinafter  prescribed,  a  semi-annual  return  of  passports  to  the 
Department,  showing  each  passport  issued  by  consular  officers  in  any 
form  which  may  have  been  presented  to  them  for  visi  or  otherwise. 
This  report  will  embrace  the  name  of  the  person  to  whom  the  i)assport 
was  issued,  Avhether  such  person  is  a  citizen  by  birth  or  naturalization, 
the  date  of  issue,  the  name  and  title  of  the  consular  oflicer  issuing  the 
same,  the  form  of  the  passport  or  paper,  and  also  the  several  visas 
thereon,  the  dates  thereof,  and  the  names  of  the  ofiicers  making  the 
same. 

"Certificates  are  sometimes  issued  by  consular  oflicers  in  countries 
where  there  is  a  diplomatic  representative,  attesting  the  identity  of 
the  persons  to  whom  they  are  granted,  to  be  used  in  the  place  of  regu- 

47G 


CHAP.  VII.]  PASSPORTS.  [§  193. 

larly  issued  passports  for  the  purposes  of  travel  or  local  protection.  In 
countries  where  the  local  laws  or  regulations  require  the  deposit  of  a 
passport  during  the  temporary  sojourn  of  a  traveler,  a  consular  certifi- 
cate setting  forth  the  facts  as  appearing  from  the  passport,  may  be 
granted,  but  only  to  comply  with  the  requirements  of  the  local  law  or 
regulation.  Certificates  in  the  nature  of  passports,  and  to  be  used  as 
such,  are  wholly'  unauthorized. 

"Applications  have  sometimes  been  made  tP  the  diplomatic  and  con- 
sular officers  of  the  Government  for  the  issue  of  certificates  of  citizen- 
ship to  persons  residing  in  foreign  lands  and  claiming  to  be  American 
citizens.  'Hereafter  no  certificates  will  be  issued,  except  in  the  form  of 
passports  under  the  regulations  herein  prescribed,  unless  a  different 
form  be  prescribed  by  the  laws  of  the  country  iu  which  the  legation  or 
consulate  is  situated,  in  which  case  the  diplomatic  representative  or 
consul  will  transmit  to  the  Department  a  copy  of  the  prescribed  form. 
To  protect  the  dignity  of  such  citizenship,  and  to  guard  against  fraud- 
ulent assumption  of  it,  ministers  and  consuls  will  be  strict  in  the  ob- 
servance of  the  rules  herein  laid  down,  and  will  exercise  caution  iu 
issuing  passports  to  applicants.  When  their  intervention  is  invoked 
on  behalf  of  citizens  of  the  United  States  residing  in  foreign  countries 
agents  of  the  Government  will  be  careful  to  remember  that  it  is  as  incum- 
bent on  such  persons  as  it  is  upon  the  citizens  or  subjects  of  those  for- 
eign countries  to  observe  the  reasonable  laws  of  the  state  in  which 
they  reside. 

"xlbuses  which  have  heretofore  occurred  in  granting  protection  from 
the  local  authoritj-  in  eastern  countries,  and  especially  in  the  Turkish 
.dominions,  to  persons  who,  iu  the  opinion  of  this  Department,  had  no 
claim  thereto,  render  it  advisable  that  the  legations  and  consulates  there 
should,  once  iu  six  months,  report  the  number,  names,  and  occupations 
of  the  persons  to  whom,  during  the  six  months  preceding,  such  protec- 
tion may  have  been  given,  or  by  whom  it  may  have  been  claimed.  Such 
report  will  in  future  be  expected  to  be  made  at  the  beginning  of  every 
January  and  July.  It  is  believed  that  sound  policy  dictates  the  utmost 
scrutiny  and  caution  in  extending  the  protection  of  this  Government 
to  any  persons  abroad  not  citizens  of  the  United  States.  This  policy, 
scrupulously  adhered  to,  is  apt  to  afibrd  more  efficient  protection  to 
those  to  whom  it  is  really  due.  Such  protection  should  in  no  event  be 
given  to  aliens  not  actually  in  discharge  of  official  duty  under  the  direc- 
tion of  the  respective  diplomatic  agents  and  consular  officers  or  em- 
ployed iu  their  domestic  service,  or  when  it  will  operate  to  screen  the 
holder  from  prosecution  for  offenses  against  the  laws  of  the  country,  or 
when  reasonable  ground  exists  for  objection  by  the  Government. "  Xo 
instrument  in  the  nature  of  a  passport  should  be  issued  to  aliens  thus 
jirotected;  it  will  be  sufficient  to  grant,  when  necessary,  a  certificate 
setting  forth  their  relation  and  duties  in  connection  with  the  legation  or 
consulate." 

Printed  Pers.  Inst.  Dip.  Aleuts,  1885;  sec  also  U.  S.  Cou8.  IJeg.,  1881,  ^S^N  161/. 

Tliere  is  no  law  authorizing  the  Secretary  of  State  to  fuinish  the 
owners  of  an  American  merchant  vessel  with  a  letter  of  safecondiKit  to 
the  American  ministers  and  naval  officers  in  the  East 

12  Op.,  G5,  Stanbeiy,  18CG. 

Ah  to  Hca-lcttcrs,  8(!0  infra,  ^  408. 

477 


^  194]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

(4)  Visas,  and  limitations  as  to  timb. 

§194. 

"  It  lias  been  broupflit  to  the  knowledgo  of  this  Department  that 
many  of  the  eonsnls  of  foreiun  Governments  residing  in  the  United 
States,  are  in  habit  of  attaching  their  vise  to  passports  of  citizens  of  the 
United  States  which  have  been  issued  more  than  a  year.  As  the  regu- 
hition  of  this  Department,  made  i)nrsnant  to  hiw,  reqnircs  that  a  new 
passjiort  sliall  be  taken  ont  by  every  citizen  of  the  United  States  when- 
ever he  or  she  may  leave  the  country,  and  that  every  passport  to  bo 
valid,  must  be  renewed,  either  at  this  Department,  or  at  a  legation  or 
consulate  of  the  United  States,  at  theexpiration  of  one  year  from  its  date, 
and  that  a  revenue  tax  of  five  dollars  shall  bo  paid  on  each  passport  at 
the  time  at  which  it  shall  be  issued  or  renewed,  it  is  essential  to  the  pro- 
tection of  the  revenue  due  from  this  source  that  foreign  consuls  should 
abstain  from  attaching  their  vis6  to  passports  which  have  been  used 
on  a  former  absence  of  the  liolder  from  the  United  States  or  which  are 
a  year  or  more  old  when  presented  for  visd." 

Mr.  Fish,  Sec.  of  State,  to  Ur.  Thoruton,  May  9,  1870.     MSS.  Notes,  Gr.  Brit. 

"  Upon  that  subject  I  have  to  inform  you  that  applicants  at  the  De- 
partment arc  uniibrmly  advised  that  a  passport  is  good  for  two  years 
from  its  date,  and  no  longer ;  and  that  persons  applying  to  an  American 
rei>resentative  abroad  will  be  required  to  furnish  satisfactory  evidence 
that  they  are  still  entitled  to  protection  as  citizens  of  the  United  States. 
It  is  considered  that  indefinite  residence  abroad  might  be  quite  as  much 
encouraged  by  the  possession  of  a  passport  good  for  an  indefinite  i)eriod, 
as  by  the  operation  of  the  rule  which  forces  the  party  to  submit  his  case 
anew  to  the  careful  scrutiny  of  the  legation  as  often  as  once  in  two 
years,  with  suitable  evidence  bearing  upon  his  claim  to  continued  pro- 
tection." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Everett,  Feb.  5,  1878.     MSS.  lust.,  Germ. 

The  paragraph  of  our  Consular  Kegulations  which  provides  that  no 
visa  will  be  attached  to  any  passport  after  two  years  from  its  date,  is  a 
matter  purely  municipal,  and  does  not  necessarily  abrogate  such  pass- 
ports when  renewal  could  not  be  had. 

Mr.  Evarts,  Sec.  of  State,  trt  Mr.  Fisb,  Dec.  18,  1878.    MSS.  lust.,  Switz. 

While  the  right  of  foreign  Governments  to  require  passports  from 
citizens  of  the  United  States  is  not  disputed,  the  frivolous  exaction  of 
taxes  on  visas,  and  obstructions  in  their  way  by  foreign  Governments,  is 
a  matter  of  international  complaint. 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  For«ter,  March  12,  1881.     MSS.  lust., 
Spain. 

47S 


CHAP.  YII.]  PASSPORTS.  [§  194. 

"  I  inclose  for  your  attention  a  letter  dated  April  30,  1885,  from  Mr. 
H.  B.  Plant,  tbe  jiresident  of  the  Savannah,  Florida  and  Western  Kail- 
way  Comijauy,  complaining  of  the  great  annoyance  and  discourage- 
ment to  tbe  commercial  and  passenger  traffic  of  the  railways  leading  to 
the  ports  on  the  Gulf  of  Mexico  caused  by  the  system  now  enforced  in 
Cuba  requiring  passports  to  be  visaed  by  a  Si)anish  consul  from  all 
persons  arriving  at  a  Cuban  port.  Many  of  those  proceeding  there  for 
the  first  time  are  ignorant  of  the  necessity  of  providing  themselves  with 
a  visaed  passport,  and  discover  it  only  on  arriving  at  the  port  of  em- 
barkation, and  often  too  late  to  obtain  one  from  Washington.  They 
are,  perhaps,  also  further  deterred  from  pursuing  their  journey  by  the 
heavy  fee  of  $4:  exacted  for  the  vis6  in  addition  to  the  first  cost  of  the 
Ijassport. 

"  The  passport  system  having  been  found  a  serious  obstacle  to  the 
modern  mode  of  universal  and  rapid  travel,  is  now  practically  and  tac- 
itly abolished  in  Euroi)e,  except  where  a  military  state  of  siege  requires 
every  traveler  to  be  identified  and  vouched  for.  It  is  believed  by  this 
Government  that  our  relations  with  Cuba  are  so  peaceful  and  intimate 
that  this  restriction  to  trade  and  travel  might  now  be  removed  without 
detriment  to  the  interests  of  either  nation  and  in  fact  to  their  mutual 
advantage.  You  are  therefore  requested  to  take  an  early  opportunity 
to  lay  these  views  before  the  minister  of  foreign  affairs,  and  to  i^ropose 
and  urge  that  a  clause  should  be  inserted  in  the  commercial  treaty  now 
pending  between  the  United  States  and  Spain  abolishing  the  present 
system  of  passports,  except  possibly  at  such  times  when  a  state  of  siege 
or  military  operations  for  the  national  defense  might  require  a  more 
rigorous  inspection  of  travelers  arriving  at  Spanish  ports.  Should  this 
suggestion  be  favorably  received,  j'ou  can  forward  at  once  to  the  De- 
partment the  text  of  such  a  clause  as  drawn  up  either  by  yourself  or  at 
the  Spanish  foreign  office,  with  a  view,  if  necessary,  to  consultation  here 
with  tbe  Spanish  minister." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Foster,  May  6,  1885.    MSS.  lust.,  Spain; 
For.  Rel.,  1885. 

"Passports  arc  to  be  verified  only  by  the  consular  officer  of  the  place 
where  tbe  verification  is  sought,  for  which  a  fee  of  one  dollar  in  the  gold 
coin  of  tbe  United  States,  or  its  equivalent,  will  be  collected.  In  tbe  ab- 
sence of  such  consular  officer,  or  should  tbe  foreign  Government  refuse 
to  acknowledge  tbe  validity  of  tbe  consular  visa,  it  may  be  given  by  tbe 
jjrincipal  (lii)!()matic  rejjresentative.  A  diplomatic  representative  or 
liis  si'crctary  of  legation  may,  however,  verify  passports  ])resented  to 
biin  wbeii  there  is  no  consulate  of  tbe  United  States  established  in  tbe 
city  wbere  tbe  legation  is  situated.  A  consular  agent  may  visa  but 
cannot  issue  a  passport. 

"At  the  close  of  each  fpiarter,  leturnsare  to  bo  made  to  tbis  Depart- 
ment of  tbe  names  of  and  particulars  regarding  tbe  persons  to  whom  tbo 
])assport  sball  be  granted,  issued,  or  verified,  togetber  with  tbe  amount 
of  tbe  taxes  or  fees  collected  for  tbo  same,  which  taxes  or  i"ees  will  bo 

•ITU 


§  195.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [OIIAP.  VII. 

charged  on  the  books  of  tbc  Tieasiuy  against  tlie  i)orson  receiving 
tbem.  The  lees  for  visas  or  pass])orts  sboiihl  be  entered  and  accounted 
for  in  the  quarterly  statement  of  the  agent's  account. 

"No  visa  will  be  attached  to  a  passport  after  two  years  from  its  date. 
A  new  passport  niay,  however,  bo  issued  in  its  i)lace  by  the  i)roper  au- 
thority, as  hereiubelore  provided,  if  desired  by  a  holder  who  has  not 
forfeited  citizenship." 

rrinlcd  Pcrs.  Inst.  Dip.  Agouts,  leS-'j.     See.  U.  S.  Cons.  Rofj.,  1831,  ^  1G4. 

(.'■>)  How  TO  iiK  .sciTourr.i). 

§  195. 

"  A  ccrtificato  of  naturalization  and  the  possession  of  a  passport  are 
presumptive  proof,  in  the  absence  of  other  evidence,  that  the  person 
named  therein  is  a  citizen  of  the  United  States.  If  he  has  not  forfeited 
his  right  to  be  so  regarded  he  remains  such.  The  question  in  each 
case  must  bo  decided  by  the  facts  pocubar  to  it,  and  should  be  inves- 
tigated and  decided  by  the  ollicer  to  whom  the  application  is  made. 
Where  the  facts  have  been  investigated  and  doubt  exists,  a  reference 
may  be  made  to  this  Department." 

Mr.  Fish,  Sec.  of  State,  1o  Mr.  Davis,  Dec.  '22,  1874,  MSS.  Inst.,  Prussia. 

"  The  pretension  of  that  Government  [Mexico],  too,  to  ignore  the  pass- 
port of  this  Department,  and  to  require  an  inspection  of  the  certificate 
of  the  naturalization  of  an  alien,  cannot  be  acquiesced  in.  You  will  dis- 
tinctly' ai)prise  the  minister  of  foreign  affairs  to  that  eflect,  and  will  add 
that  this  Government  will  expect  to  hold  that  of  Mexico  accountable 
for  any  injury  to  a  citizen  of  the  United  States  which  may  be  occasioned 
by  a  refusal  to  treat  the  passport  of  this  Department  as  sufficient  proof 
of  his  nationality." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  June  10,  1879.     MSS.  Inst.,  Mex. 

"The  assumption  by  the  Mexican  Government  of  a  right  to  inspect 
and  decide  upon  the  validity  of  certificates  of  naturalization  issued  by 
these  numerous  courts  in  preference  to  receiving  the  proofs  afforded 
by  a  passport  of  this  Department  must  be  regarded  as  wanting  in 
proper  courtesy  to  the  Government  of  a  friendly  power. 

"  It  may  also  be  remarked  that  there  are  many  citizens  of  the  United 
States  who  were  neither  born  such  or  naturalized  in  the  ordinary  way. 
These  were  naturalized  by  treaties  with  foreign  powers,  and  not  a  few 
of  them  by  treaties  between  the  United  States  and  Mexico.  If  these 
should  visit  the  IMexican  Ilepublic,  they  will  have  no  such  certificate  of 
naturalization  as  is  granted  to  natives  of  other  countries  naturalized 
here.  The  only  guarantee  of  nationality  in  their  case  would  be  a  pass- 
port from  this  Department." 
Ibid. 

dSO 


CUAP.  VII.]  INDIANS    AND    CHINESE.  [§§  196,  197. 

Wlieu  a  iiassport  is  gravely  impeached,  it  slioiikl  be  supported,  in 
order  to  be  eflficacious,  by  an  adequate  certificate  of  naturalization. 

Mr.  Freliugbnysen,  Sec.  of  State,  to  Mr.  Cramer,  Mar.  28,  18ci3.  MSS.  lust., 
S-witz. 

A  passport  fraudulently  obtained  \YilI  be  treated  by  the  Department 
of  State  as  a  nullity. 

•Mr.  Marey,  Sec.  of  State,  to  Mr.  Jackson,  Dec.  7,  1653.  MSS.  lust.,  Austria; 
supra,  §  174  a. 

As  a  general  rule,  a  passpoit  granted  by  the  Secretary  of  State  is  not 
evidence  in  a  court  of  justice  that  the  person  to  whom  it  was  given  was 
a  citizen  of  the  United  States. 
Urtetiqui  r.  D'Arbel,  9  Pet.,  602. 

When  fraud  is  plainly  shown,  the  Government,  or  its  diplomatic  offi- 
cers, as  the  case  may  be,  will  refuse  to  acknowledge  the  validity  of  the 
passiiort. 

Supra,  ^  174rt. 

X.  INI)IJI\S  AND  CHINESE. 

(1)  Indians. 
§  196. 

Indians,  though  born  within  the  limits  of  the  United  States,  are  not 
''citizens"  under  the  fourteenth  amendment  to  the  Constitution,  since 
they  are  not,  in  a  lull  sense,  "  subject  to  the  jurisdiction  "  of  the  United 
States. 

McKay  v.  Campbell,  2  Sawyer,  119;  Karraboo  v.  Adams,  1  Dill.,  841 ;  Ex  parte 
Reynolds,  18  Alb.  L.  J.,  8;  15  Am.  Law  Rev.,  21.  Tbo  iuternational  rela- 
tions of  ludiaus  are  discussed  infra,  ^^  'ZOQ  ff.     See  also  supra,  ^  183. 

(2)  CniXKSE. 
§  107. 

Chinese,  also,  arc  not  citizens  in  the  contemplation  of  the  fourteenth 
amcndmeni",  since  they  are  not  capable  of  naturalization  under  our 
h'gi.slali.ui. 

Wliait.  Com.  Am.  Law,  ^$  435,  585;  In  re  A\\  Yup,  5  Sawyer,  155;  State  t». 
Ab  Cbcw,  IG  Nov.,  .50,01. 

"Although  not  accepting  as  a  iinal  decision  (not  having  j'et  been 
adlrmed  by  the  Supreme  Court  of  the  United  States)  the  ruling  of 
Judge  Sawyer  that  Chinese  cannot  become  citizens,  the  Department 
'  is  cou.strained,  on  examination  of  the  laws,  to  believe  that  his  decision 
i.s  ba.sed  on  a  .sound  ap[)reciation  of  the  law.'  Hence  it  is  advisable 
that  nothing  b(;  done  in  China  by  its  delegates  there  to  commit  it  to 
ail}'  ass(;rtion  toward  the  Imperial  (lovernment  of  the  legality  of  any 
S.  Mi.s.  1G2— VOL.  11 31  481 


§  198.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

act  of  purpoited  naturalization  of  a  Chinese  subject  in  the  United 
States." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Iloleombc,  Oct.  29,  1678.    MSS.  Inst.,  China. 

By  tlie  act  of  May  G,  1882,  sec.  11  (22  Stat.  L.,  Gl),  it  is  piovidea  "that 
hereafter  no  State  court  or  court  of  the  United  States  shall  admit 
Chinese  to  citizenshij)." 

As  to  {lassports  in  China,  see  supra,  ^  191$. 
As  to  intervention  in  China,  see  supra,  ^  67. 
As  to  treaties  with  China,  see  supra,  ^  144. 
As  to  injnries  to  Chinese,  see  infra,  ^  22G. 

A  child  born  in  the  United  States  to  Chinese  parents  here  residing 
has  been  held  to  be  a  citizen  of  the  United  States. 

Look  Tin  Sin^,  in  re.,  10  Sawyer,  '^^t'.l. 

If  not  at  the  time  "subject  to  the  jurisdiction  of  the  United  States  " 
they  are  not  citizens  {supra,  §  19G.    See  also  supra,  §  1 73,  last  paragraph). 

XI.  DOMICIL. 

(1)    May   GIY13   RIGHTS   AND   IMPOSIC   DUTIES. 

§  198. 

"  The  general  rule  of  the  public  law  is  that  every  person  of  full  ago 
has  a  right  to  change  his  domicil,  and  it  follows  that  when  he  removes 
to  another  place,  with  an  intention  to  make  that  place  his  ]»ermanent 
residence  or  his  residence  for  an  indefinite  period,  it  becomes  instantly 
his  jdace  of  domicil;  and  this  is  so,  notwithstanding  he  may  entertain 
a  floating  intention  of  returning  to  his  original  residence  or  citizenship 
at  some  future  period.  The  Sujjreme  Court  of  the  United  States  has 
decided  'that  a  person  who  removes  to  a  foreign  country,  settles  himself 
there,  and  engages  in  the  trade  of  the  country,  furnishes  by  these  acts 
such  evidences  of  an  intention  permanently  to  reside  in  that  country, 
as  to  stamp  him  with  its  national  character; '  and  this  undoubtedly  is  in 
full  accordance  with  the  sentiments  of  the  most  eminent  writers,  as  well 
as  with  those  of  other  high  judicial  tribunals  on  the  subject.  2^0  country 
has  carried  this  general  presumption  further  than  that  of  the  United 
States,  since  it  is  well  known  that  hundreds  of  thousands  of  persons 
are  now  living  in  this  country  who  have  not  been  naturalized  according 
to  the  provisions  of  law,  nor  sworn  any  allegiance  to  this  Government, 
nor  been  domiciled  amongst  us  hy  any  regular  course  of  proceedings. 
What  degree  of  alarm  would  it  not  give  to  this  vastly  numerous  class 
of  men,  actually  living  amongst  us  as  inhabitants  of  the  United  States, 
to  learn  that  by  removing  to  this  country  they  have  not  transferred 
their  allegiance  from  the  Governments  of  which  they  were  originally 
subjects  to  this  Govcrnniont.?  And,  on  the  other  hand,  what  would  be 
the  condition  of  this  country  and  its  Government,  if  the  sovereigns  of 
Europe,  from  whose  dominions  they  have  emigrated,  were  supposed  to 
have  still  a  right  to  interpose  to  protect  such  inhabitants  against  the 
482 


CHAP.  VIL]  DOMICIL:    rights    AND    DUTIES    OF.  [§  198. 

penalties  wUieli  might  be  justly  incurred  by  them  iu  cousequence  of 
their  violation  of  the  laws  of  the  United  States  "?  In  questions  ou  this 
Subject  the  chief  point  to  be  considered  is  the  animus  manendi,  or  in- 
tention of  continued  residence ;  and  this  must  be  decided  by  reasonable 
rules  and  the  general  principles  of  evidence.  If  it  sufficiently  appear 
that  the  intention  of  removing  was  to  make  a  permanent  settlement  or 
a  settlement  for  an  indefinite  time  the  right  of  domicil  is  acquired  by 
a  residence  even  of  a  few  days." 

Keport  of  Mr.  Webster,  Sec.  of  State,  to  the  President,  Dec.  "23,  1851.     G  Web- 
ster's Works,  522,  523.     (Thrasher's  case;  see  U  190,  203,  229,  230,  244,  357. 

"Koszta  being"  beyond  the  jurisdiction  of  Austria,  her  laws  were 
entirely  inoperative  iu  his  case,  unless  the  Sultan  of  Turtey  has  con- 
sented to  give  them  vigor  in  his  dominions  by  treaty  stipulations.  The 
law  of  nations  has  rules  of  its  own  on  the  subject  of  allegiance,  and  dis- 
regards generally  all  restrictions  imposed  upon  it  by  municipal  codes. 

"  This  is  rendered  most  evident  by  the  proceedings  of  independent 
states  iu  relation  to  extradition.  ISTo  state  can  demand  from  any  other 
as  a  matter  of  right  the  surrender  of  a  native-born  or  naturalized  citizen 
or  subject,  an  emigrant,  or  even  a  fugitive  from  justice,  unless  the  de- 
mand is  authorized  by  express  treaty  stii)ulation.  International  law 
allows  no  such  claim  though  comity  may  sometimes  yield  what  right 
withholds.  To  surrender  political  offenders  (and  in  this  class  Austria 
places  Koszta)  is  not  a  dutj',  but,  on  the  contrary,  compliance  with  such 
a  demand  would  be  considered  a  dishonorable  subserviency  to  a  for- 
eign power,  and  an  act  meriting  the  reprobation  of  mankind.     *     *     * 

"Mr.  Hiilsemann,  as  the  undersigned  believes,  falls  into  a  great 
error,  an  error  fatal  to  some  of  his  most  important  conclusions,  by  as- 
suming that  a  nation  can  properly  extend  its  protection  only  to  native- 
born  or  naturalized  citizens.  This  is  not  the  doctrine  of  international 
law,  nor  is  the  jjractice  of  nations  circumscribed  within  such  narrow 
limits.  This  law  does  not,  as  has  been  before  remarked,  complicate 
questions  of  this  nature  by  respect  for  municipal  codes.  In  relation  to 
this  subject  it  has  clear  and  distinct  rules  of  its  own.  It  gives  the 
national  character  of  the  country  not  only  to  native-born  and  natural- 
ized citizens,  but  to  all  residents  in  it  who  are  there  with,  or  even  with- 
out, an  intention  to  become  citizens,  provided  they  have  a  domicile 
therein.  Foreigners  may,  and  often  do,  acquire  a  domicil  in  a  country, 
even  though  they  have  entered  it  with  the  avowed  intention  not  to  be- 
come naturalized  citizens  l)ut  to  return  to  their  native  laud  at  some  re- 
mote and  uncertain  i)eriod ;  and,  whenever  they  acquire  a  domicil,  in- 
ternational law  at  once  impresses  upon  them  the  national  character  of 
the  country  of  that  <loini(;iI.  It  is  a  maxim  of  international  law  that 
domicil  confers  a  national  character;  it  does  not  allow  any  one  who  has 
a  domicil  to  decline  the  national  character  thus  conli-i  rcil  ;  it  forces  it 
upon  him,  often  very  mu(;li  against  his  will  ai>-;l  to  his  gic;it  (Irlriiiicnt. 


§   1  98.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  VII. 

Iiiteriiatioual  law  looks  only  to  the  national  cliaractor  in  (letoiininingj 
what  eounti >  lias  a  right  to  protect.  If  a  i)erson  jioes  from  tlii-s  country 
abroad,  with  the  nationality  of  the  United  States,  this  law  enjoins  upon 
other  nations  to  respect  him  in  rej^ard  to  protection  as  an  Anierican 
citizen.  It  concedes  to  every  country  the  right  to  i)r()tec4^  any  and  all 
who  may  be  clothed  with  its  nationality.     •     *     * 

"The  most  ai)proved  definitions  of  a  dymicil  are  the  following: 

"'A  residence  at  a  particular  i)lacc,  accompanied  with  i)()sitive  or 
presumptive  proof  of  continuing  there  for  an  unlimited  time.'  (I  15in- 
ney's  l\eports,  340.) 

'"If  it  sulliciently  appear  that  the  intention  of  removing  was  to  make 
a  permanent  settlement,  or  for  an  indefinite  time,  the  right  of  domicil  is 
acquired  by  a  residence  of  a  few  days.'     (The  Venus,  8  Cranch,  270.) 

" '  Vattel  has  delined  domicil  to  be  a  fixed  residence  in  any  place,  with 
au  intention  of  always  staying  there.  But  this  is  not  an  accurate  state, 
ment.  It  would  be  more  correct  to  say  that  that  jdace  is  properly  the 
domicile  of  a  person  in  which  his  habitation  is  fixed,  without  any  jircsent 
intention  of  removing  therefrom.'     (Story's  Con.  of  Laws,  §  43.) 

'"A  person  who  removes  to  a  foreign  country,  settles  himself  there, 
and  engages  in  the  trade  of  the  country,  furuisbes  by  these  acts  such 
evidence  of  an  intention  permanentl3'  to  reside  there  as  to  stamp  him 
with  the  national  character  of  the  state  where  he  resides.'  (The  Ve- 
nus, 8  Cranch,  270.)     *     -     * 

'"However,  in  many  cases  actual  residence  is  not  indispensable  to  re- 
tain a  domicil  after  it  is  once  acquired  ;  but  it  is  retained,  animo  solo, 
by  the  mere  intention  not  to  change  it,  or  to  adopt  another.  If,  there- 
fore, a  person  leaves  his  home  for  temporary  puri)0ses,  but  with  an  in- 
tention to  return  to  it,  this  change  of  place  is  not  a  change  of  domicil. 
Thus,  if  a.  person  should  go  on  a  voyage  to  sea,  or  to  a  foreign  country, 
for  health  or  for  |)leasure,  or  for  business  of  a  temjjorary  nature,  with 
an  intention  to  return,  such  a  transitory  residence  would  not  constitute 
a  new  domicil,  or  amount  to  an  abandonment  of  the  old  one;  for  it  is 
not  the  mere  act  of  inhabitancy  in  a  jdace  which  makes  it  the  domicil, 
but  it  is  the  fact  coupled  with  the  intention  of  remaining  there.'  (Story's 
Con.  of  Laws,  §  44.) 

"At  the  very  last  session  of  the  Supreme  Court  of  the  United  States 
a  case  came  up  for  adjudication  presenting  a  question  as  to  the  domicil 
of  General  Kosciusko  at  the  time  of  his  death.  The  decision,  which 
was  concurred  in  by  all  the  judges  on  the  bench,  fully  sustains  the  cor- 
rectness of  the  foregoing  propositions  in  regard  to  domicil,  i)articularly 
the  two  most  important  in  Koszta's  case;  flrst,  that  he  acquired  a  dom- 
icile in  the  United  States;  and,  second,  that  he  did  not  lose  it  by  his 
absence  in  Turkey.     (14  How.,  400.) 

''As  the  national  character,  according  to  the  law  of  nations,  depends 
upon  the  domicil,  it  remains  as  long  as  tlie  domicile  is  retained,  and  is 
changed  with  it.  Koszta  was,  therefore,  vested  with  the  nationality  of 
484 


CHAP.  VII.]  DOMICIL:    rights    AND    DUTIES    OP.  [§  198. 

an  Americau  citizeu  at  Smyrna,  if  be,  in  coutemi)lation  of  law,  bad  a 
domicil  in  tbe  United  States.    *     *     * 

"Wbenever,  by  tbe  operation  of  tbe  law  of  nations,  an  individual 
becomes  elotbed  witb  our  national  cbaracter,  bo  be  a  native-bora  or 
naturalized  citizeu,  an  exile  driven  from  bis  early  bome  by  political  op- 
pression, or  an  emigrant  enticed  from  it  by  tbe  bopes  of  a  better  future 
for  bimself  and  bis  posterity,  be  can  claim  tbe  protection  of  tbis  Govern- 
ment, and  it  may  respond  to  tbat  claim  witbout  being  obliged  to  explain 
its  conduct  to  any  foreign  power,  for  it  is  its  duty  to  make  its  nation- 
ality respected  by  otber  nations,  and  respectable  in  every  quarter  of 
tbe  globe. 

"  Tbis  rigbt  to  protect  persons  baving  a  domicil,  tbougb  not  native- 
born  or  naturalized  citizens,  rests  on  tbe  firm  foundation  of  justice,  and 
tbe  claim  to  be  protected  is  earned  by  considerations  wbicb  tbe  protect- 
ing power  is  not  at  liberty  to  disregard.  Sucb  domiciled  citizen  pays 
tbe  same  price  for  bis  protection  as  native-born  or  naturalized  citizens 
pay  for  tbeirs.  He  is  under  tbe  bonds  of  allegiance  to  tbe  country  of 
bis  residence,  and  if  be  breaks  tbem  incurs  tbe  same  penalties;  be 
owes  tbe  same  obedience  to  tbe  civil  laws,  and  must  discbarge  tbe 
duties  tbey  impose  on  bim ;  bis  property  is  in  tbe  same  way  and  to  tbe 
same  extent  as  tbeirs  liable  to  contribute  to  tbe  support  of  tbe  Govern- 
ment. In  war  be  sbares  equally  witb  tbem  in  tbe  calamities  wbicb  may 
befall  tbe  country;  bis  services  may  be  required  for  it* defense;  bis  life 
may  be  periled  and  sacrificed  in  maintaining  its  rigbts  and  vindicating 
its  bonor.  In  nearly  all  respects  bis  and  tbeir  condition  as  to  tbe  duties 
and  burdens  of  Government  are  undistinguisbable;  and  wbat  reasons 
can  be  given  wbj',  so  far  at  least  as  regards  protection  to  person  and 
property  abroad  as  well  as  at  bome,  bis  rigbts  sbould  not  be  coexten- 
sive with  tbe  rigbts  of  native-born  or  naturalized  citizens.  Bj^  tbe  law 
of  nations  tbey  have  tbe  same  nationality;  and  wbat  rigbt  has  any 
foreign  power,  for  tbe  purpose  of  making  distinction  between  tbem,  to 
look  bebind  tbe  cbaracter  given  tbem  by  tbat  code  wbicb  regulates 
national  intercourse?  When  tbe  law  of  nations  determines  the  nation- 
ality of  anj^  man,  foreign  Governments  are  bound  to  respect  its 
decision.    *     •     * 

"By  tbe  laws  of  Turkey  and  otber  Eastern  nations,  tbe  consulates 
therein  may  receive  under  tbeir  protection  strangers  and  sojourners 
whose  religion  and  social  manners  do  not  assimilate  with  the  religion 
and  manners  of  those  countries.  Tbe  j)ersons  tbus  received  become 
thereby  invested  with  tbe  nationality  of  tbe  protecting  consulate. 
These  consulates  and  otber  European  establishments  in  the  East  are  in 
the  constant  habit  of  ojX'iiiDg  their  doors  for  tbe  reception  of  such  in- 
mates, wbo  ai(!  icceived  iirespective,  of  tbe  countiy  of  tlieir  liirtb  or 
allegiance.  It  is  not  miicoiiuiioii  lor  lliciii  lo  biuc  a  very  large  niiiiiber 
of  such  prol('(jcs.  international  law  recognizes  jiiid  sunclions  (be  rigbts 
acquiesced  {xic:  acquin'd?)  by  tbis  conneclion. 

485 


§  198.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

" '  In  tlu'  law  oC  nations  as  to  Europe  the  rule  is  that  men  take  their 
national  character  from  the  <ieneral  character  of  the  country  in  which 
they  re;;ide ;  and  this  rule  applies  ecpially  to  America.  But  in  Asia  and 
Africa  au  iuuniscible  character  is  kept  up,  and  Europeans  trading  under 
the  protection  of  a  factory  take  their  national  character  from  the  estab- 
lishment under  which  they  live  and  trade.  This  rule  applies  to  those 
parts  of  the  world  from  obvious  reasons  of  policy,  because  foreigners 
are  not  admitted  there  as  in  Europe  "  and  the  western  parts  of  the  world," 
iuto  the  general  body  and  mass  of  the  society  of  the  uation,  but  they 
continue  strangers  and  sojourners,  not  acquiring  any  national  char- 
acter under  the  general  sovereignty  of  the  countiy.'  (1  Kent  Com., 
78,  79.)     *     *     * 

"If  the  conclusions  heretofore  arrived  at  are  correct,  the  Austrian 
agents  had  no  more  right  to  take  Koszta  from  the  soil  of  the  Turkish 
dominion  than  from  the  territory  of  the  United  States,  and  Captain 
Ingraham  had  the  same  right  to  demand  and  enforce  his  release  as  ho 
would  have  had  if  Koszta  had  been  taken  from  American  soil  and  in- 
carcerated in  a  national  vessel  of  the  Austrian  Emperor.  In  this  ques- 
tion, confined  as  it  is  to  the  United  States  and  Austria,  the  place  of  the 
transaction  is  immaterial,  unless  the  Austrian  municipal  laws  extended 
over  it.    *    *    * 

"The  conclusions  at  which  the  President;  has  arrived,  after  a  full  ex- 
amination of  the*  transaction  at  Smyrna,  and  respectful  consideration 
of  the  views  of  the  Austrian  Government  thereon,  as  presented  in  Mr. 
lliilsemann's  note,  are,  that  Koszta,  when  seized  and  imprisoned,  was 
invested  with  the  nationality  of  the  United  States,  and  they  had,  there- 
fore, the  right,  if  they  chose  to  exercise  it,  to  extend  their  protection  to 
him  ;  that  from  international  law — the  only  law  which  can  be  rightfully 
appealed  to  for  rules  of  action  in  this  case — Austria  could  derive  no 
authority  to  obstruct  or  interfere  with  the  United  States  in  the  exercise 
of  this  right,  in  effecting  the  liberation  of  Koszta;  and  that  Captain 
Ingraham's  interposition  for  his  release  was,  under  the  peculiar  and 
extraordinary  circumstances  of  the  case,  right  and  proper." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Hiilsomauu,  Sept.  26,  185:1.  MSS.  Notes,  Aus- 
tria.   See  siqna.  ^  175;  3  Lawrence  com.  sur  droit  iut.,  138;  4  ibid.,  179, 180. 

Mr.  Marcy's  position,  as  above  given,  is  sustained  by  Calvo,  droit  int. 
(3  ed)  ii,  9G;  and  questioned  by  Hall,  Int.  Law,  §  72. 

As  to  Ko.szta's  case,  see,  for  full  correspoudeuce,  Presidcut's  message,  1st  sess.  33d 
Cong.,  House  Ex.  Doc.  1,  91 ;  Senate  Ex.  Doc.  1,  33d  Cong.,  1st  sess.  Tbo 
correspondence  witli  the  American  legation  in  Constantinople  and  the  con- 
sul at  Smyrna  in  this  case  is  given  in  Senate  Ex.  Doc.,  40,  33d  Cong.,  1st 
sess. ;  Ex.  Doc.  53,  same  session ;  Br.  and  For.  St.  Pap.  1853-'54,  925. 

A  person  domiciled  iu  the  United  States  is  entitled  "to  our  care 
and  consideration,  and  in  most  circumstances  may  be  regarded  as  under 
our  protection." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Kuchanan,  March  17, 1854.    MSS.  Inst.,  Or.  Brit. 
480 


CHAP.  VII.]  DOMICIL:    obtaining   AND    PROOF  OF.  [§  199. 

By  tbc  persoDal  instructions  of  the  Department  of  State  issued  by  Mr. 
Bayard,  Secretary  of  State,  in  1885,  in  section  118  it  is  provided  that 
"nothing  herein  contained  is  to  be  construed  as  in  any  "svay  abridging 
the  right  of  persons  domiciled  in  the  United  States,  but  not  naturalized 
therein,  to  maintain  internationally  their  status  of  domicil,  and  to  claim 
protection  from  this  Government  in  the  maintenance  of  such  status." 

As  to  abandonmeut  of  citizensliip  by  change  of  domicil,  see  snpra,  §§  176,  190. 

As  to  passports  based  on  domicil,  see  supra,  §  193. 

As  to  Thrasher's  case,  see  supra,  §  190;  6  Webster's  Works,  518.^. 

"As  to  strangers,  those  who  settle  in  an  enemy's  country  after  a  war 
is  begun,  of  which  they  had  previous  notice,  may  justly  be  looked  on  as 
enemies." 

Burlamaqui's  Polit.  Law,  281,  adopted  by  Mr.  Piukiiey  as  commissioner  in  the 
case  of  the  Betsey.     Wheatou's  Life  of  Piukuey,  251 ;  infra,  §  352. 

That  domicile  by  neutral  in  belligerent's  country  may  extinguish  neutral  rights, 
see  infra,  $  352. 

(2)  Obtaining  and  proof  of. 

§199. 

"  While  a  resident  domicil  here  would  not  be  interrupted  by  transient 
absences,  animo  revertendi,  yet  the  establishment,  during  absence  from 
the  United  States,  of  a  domicil  in  Switzerland  *  *  *  would  be  in 
conflict  with  and  annul  the  American  domicil  for  the  purpose  of  the 
naturalization  statutes.  The  question  here  occurs  whether  a  residence 
animo  manendi  in  Switzerland,  or  legal  domicil  there,  is  a  condition  to 
the  acceptance  of  municipal  office,  like  that  held  bj'  Mr.  JSTordmann. 
It  is  to  be  borne  in  mind  that  when  he  took  his  seat  in  the  council,  he 
was  still  a  Swiss  citizen.  Under  these  circumstances  any  evidence  of 
intention  to  maintain  Swiss  domicil  has  especial  weight." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cramer,  May  6, 1885.  MSS.  lust.,  Switz.  See 
Whart.  Confl.  of  Laws,  ^§  20/. 

For  a  discussion  of  American  cases  in  which  the  place  of  abode  of  the 
wife  and  familv  were  considered  as  criteria  of  domicile,  see  4  Phill.  Int. 
Law  (2  ed.),  171. 

While  a  citizen  of  the  United  States  by  settling  permanently  abroad 
for  business  purposes,  so  as  to  acquire  a  commercial  domicil  in  such 
place  of  settlement,  may  impress  upon  his  property  found  on  the  ocean 
the  legal  liabilities  of  such  domicil,  it  does  not  follow  from  this  that 
he  becomes  expatriated,  so  as  to  divest  himself  of  the  responsibilities 
and  liabilities  of  citizenship  of  the  United  States. 
U.  S.  V.  Gillies,  Pot.  C.  C,  159. 

In  determining  the  question  of  domicil,  the  chief  point  to  be  consid- 
ered i.s  the  animus  manendi^  which  may  be  proved  by  declarations  or 
inferred  from  the  circumstances  of  tlie  ca.sc.  If  it  appear  that  the  in- 
tention of  removing  wa.s  to  malce  a  [)erMjanent  settlement,  or  for  an  iu- 

187 


§199.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIKNAGE.    [CHAP.   VII. 

definite  time,  the  right  of  domieil  is  acquired  by  a  resideuce  eveii  of  a 
few  days.  The  effects  of  doniicil  cease  from  the  uiomeut  the  party  puts 
liiraself  in  motion,  bona  Jide,  to  quit  the  country,  intending  not  to  re- 
turn. 

The  Yeuus,  8  Craucli,  253. 

A  naturalized  citizen  returned  to  his  native  country  for  the  purpose 
of  trade;  after  residing  there  and  engaging  in  business  for  nine  years, 
but  with  the  intention  of  returning  again  to  his  adopted  country,  war 
broke  out  between  the  two  countries,  llis  business  being  complicated, 
lie  remained  iu  his  native  country  a  little  more  than  a  year  after  his  lirst 
knowledge  of  the  war,  for  tlie  purpose  of  winding  up  his  affairs,  but  en- 
gaging in  no  new  commercial  transaction  whatever  with  the  enemy,  and 
then  returned  to  his  adopted  country.  It  was  held  that  he  had  gained 
a  domicil  iu  his  native  country,  and  that  his  goods,  being  captured, 
were  liable  to  condemnation. 

The  Frances,  8  Crauch,  335. 

A  merchant  having  a  fixed  residence,  and  carrying  on  business  at  the 
place  of  his  birth,  does  not  acquire  a  foreign  commercial  character  by 
occasional  visits  to  a  foreign  country. 

The  Nereide,  9  Crauch,  388. 

If  a  native  citizen  of  the  United  States  emigrate,  before  a  declara- 
tion of  war,  to  a  neutral  country  and  acquire  a  domicile  there,  and 
afterwards  return,  during  the  war,  to  the  United  States  and  reacquire 
his  domicil  bere,  he  becomes  a  redintegrated  American  citizen,  and 
cannot  flagrante  hello  separate  himself  from  his  character  as  such  and 
acquire  a  neutral  character  by  returning  to  his  adopted  country. 
The  Dos  Hermauos,  2  Wheat.,  76. 

The  native  character  does  not  revert,  by  a  mere  return  to  his  native 
country,  to  a  merchant  who  is  domiciled  in  a  neutral  country  at  the 
time  of  a  capture,  and  after  the  capture  leaves  his  commercial  estab- 
lishment in  the  neutral  country  to  be  conducted  by  his  clerks  in  his 
absence,  visiting  his  native  country  merely  on  mercantile  business,  and 
intending  to  return  to  his  adopted  country.  His  neutral  doniicil  still 
continues. 

The  Friendschaft,  3  Wheat.,  14. 

British  subjects  residing  in  J^ortugal,  though  allowed  great  privi- 
leges, do  not  retain  their  native  character,  but  acquire  that  of  the  coun- 
try where  they  reside  and  carry  on  their  trade. 

Ibid. 

Kosciusko's  "declarations  that  his  residence  was  in  France,  in  the 
way  they  were  made  in  his  wills,  with  an  interval  of  ten  years  between 
them,  would,  upon  the  authority  of  adjudged  cases,  be  sufficient  to 
establish,  yrima  facic^  his  domicil  in  France.  They  have  been  received 
in  the  courts  of  France,  in  the  couits  of  England,  and  in  those  of  our 
488 


CHAP.  VIl]  DOMICIL:    EFFECT    OF.  [§200. 

owu  couutry.  *  *  *  Kosciusko's  domicil  of  origin  was  Lithuania, 
iu  Poland.  The  presumption  of  law  is  that  it  was  retained,  unless  the 
change  is  proved,  and  the  burden  of  proving  it  is  upon  him  who  alleges 
the  change.  (Somerville  v.  Somerville,  5  Yes.,  787.)  *  *  *  But 
what  amount  of  proof  is  necessary  to  change  a  domicil  of  origin  into  a 
inima  facie  domicil  of  choice  ?  It  is  residence  elsewhere,  or  where  a 
person  lives  out  of  the  domicil  of  origin.  That  repels  the  presumption 
of  its  continuance,  and  casts  upon  him  who  denies  the  domicil  of  choice 
the  burden  of  disproving  it.  Where  a  person  lives  is  taken  prima  facie 
to  be  his  domicil  until  other  facts  establish  the  contrary.  *  *  *  It  is 
difficult  to  lay  down  any  rule  under  which  every  instance  of  residence 
could  be  brought  which  may  make  a  domicil  of  choice.  But  there 
must  be,  to  constitute  it,  actual  residence  in  the  place,  with  the  inten- 
tion that  it  is  to  be  a  principal  and  permanent  residence.  That  inten- 
tion may  be  inferred  from  the  circumstances  or  condition  in  which  a 
l)erson  may  be  as  to  the  domicil  of  his  origin,  or  from  the  seat  of  his 
tbrtune,  his  family,  and  pursuits  of  life.  *  *  *  a  removal  which 
does  not  contemplate  an  absence  from  the  former  domicil  for  an  indefi- 
nite and  uncertain  time  is  not  a  change  of  it.  But  when  there  is  a 
removal,  unless  it  can  be  shown,  or  inferred  from  circumstances,  that  it. 
was  for  some  particular  purpose  expected  to  be  only  of  a  temporary 
nature,  or  in  the  exercise  of  some  particular  profession,  office,  or  call- 
ing, it  does  change  the  domicil.  The  result  is  that  the  place  of  resi- 
dence is  prima  facie  the  domicil,  unless  there  be  some  motive  for  that 
residence  not  inconsistent  with  a  clearly-established  intention  to  retain 
a  permanent  residence  in  another  jilace." 

Eunis  V.  Smith,  14  How.,  422,  ^T. 

A  ])arty  who  puts  himself  in  itinerc  to  return  to  his  native  country, 
is  already  deemed  to  have  assumed  his  native  character. 

The  St.  Lawrence,  1  Gall.,  4(37 ;  The  Frances,  ibi(l.,C>l4.    See  to  this  effect  Whart. 
Confl.  of  Laws,  $  of). 

(3)  Effect  of. 

§  200. 

The  adoption  of  a  belligerent  domicil  by  a  neutral  subjects  him  to 
belligerent  liabijities. 

Infra,  ^  352. 

Domicil  in  the  United  States  gixcs  a  claim  of  i)rotection  as  to  all 
riglits  the  law  of  nations  attaches  to  domicil. 

Supra,  U  19:$,  198. 

Accei)tance  of  a   foreign  domicil    may  work  abandonnuMit  of  i)rior 
citizenshii>. 

Supra,  ^  17(j. 

As  to  domicil  in  relation  (o  ni;in  i:i;^<',  hcc,  infra,  ^^  -00^. 
As  to  general  rehuiona  of  domicil,  Kee  Whart.  Conll.  of  LawH,  '^^  20  ([. 

4S1) 


§  201.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  YII. 

Domic'il,  not  nationality,  must  be  the  basis  of  appeal  when  a  citizeu 
of  the  Uiritecl  States  seeks  to  claim  the  protection  of  the  municipal 
law  of  his  i)articnlar  State  or  Territory.  Citizenship  in  the  United 
States  would  not  by  itself  avail  him  for  this  purpose.  He  must  prove 
his  domieil  in  the  particular  State  or  Territory  of  whose  laws  he  seeks 
the  benefit. 

Wliart.  Conil.  of  Laws,  ^  8. 

XII.  ALIENS. 
(1)   I'IGIITS  OF. 

§201. 

As  to  treaty  stipulations,  see  supra,  ^^  140^. 

As  to  rights  of  foreigners  in  Mexico,  see  Consular  Reports  on  Conmicrcial  Re- 
lations, 1883,  No.  31,  (588  #. 

"  There  is  no  principle  of  the  law  of  nations  more  firmly  established 
than  that  which  entitles  the  property  of  strangers  within  the  jurisdic- 
tion of  a  country  in  friendship  with  their  own,  to  the  protection  of  its 
sovereign  by  all  the  efforts  in  his  power." 

3Ir.  Adams,  Sec.  of  State,  to  Mr.  De  Ouis,  Mar.   12,  1818.     MSS.  Notes,  For. 
Leg. 

The  principle  of  "  placing  the  foreigner  in  regard  to  all  objects  of 
navigation  and  commerce  upon  a  footing  of  equal  favor  with  the  native 
citizen,"  "  is  altogether  congenial  to  the  spirit  of  our  institutions,  and 
the  main  obstacle  to  its  adoption  consists  in  this,  that  the  fairness  of  its 
operation  depends  upon  its  being  admitted  universally.  *  ♦  *  The 
United  States  have  nevertheless  made  considerable  advances  in  their 
l^roposals  to  other  nations  towards  the  general  establishment  of  this 
most  liberal  of  all  principles  of  commercial  intercourse." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Anderson,  May  27, 1823.     MSS.  Inst.,  Ministers. 

"  There  are  no  provisions  in  existing  treaties  between  the  United 
States  and  Great  Britain  touching  the  general  right  of  British  subjects 
to  hold  real  estate  or  personal  property  in  the  United  States.  The 
right  of  foreigners  to  hold  title  to  real  estate  is  entirely  dependent  on 
the  laws  of  the  State  in  which  the  land  is  situate.  Foreigners  may  ob- 
tain title  to  i^ublic  lauds  owned  by  the  United  States  by  purchase. 
They  cannot,  however,  enter  such  lands  under  the  pre-emption  or  home- 
stead laws  without  having  first  declared  their  intention  to  become  citi- 
zens of  the  United  States." 

Mr.  Cadwalader,  Asst.  Sec.  of  State,  to  Mr.  Lowe,  Nov.  25,  1874.     MSS.    Dom. 

Let. 
To  the  same  eflFect  see  Mr.  Bayard  to  Mr.  Lehman,  June  23,  1885,  quoted  supra, 

5  150. 
As  to  effect  of  such  treaties  generally  sec  supra,  $  138. 

490 


CHAP.  VII.]  ALIENS:    EIGHTS    OF.  [S^  201. 

"It  is  clear,  by  the  common  law,  that  au  alien  can  take  lands  by  pur- 
chase, though  not  by  descent ;  or,  in  other  words,  he  cannot  take  by 
the  act  of  law,  but  he  may  by  the  act  of  the  party.  This  principle  has 
been  settled  in  the  year-books,  and  has  been  uniformly  recognized  as 
sound  law  from  that  time.  *  *  *  i^Tor  is  there  any  distinction, 
whether  the  purchase  be  by  grant  or  by  devise.  lu  either  case,  the 
estate  vests  in  the  alien,  *  *  *  not  for  his  own  benefit,  but  for  the 
benefit  of  the  state ;  or,  in  the  language  of  the  ancient  law,  the  alien 
has  the  capacity  to  take,  but  not  to  hold  lands,  and  they  may  be  seized 
into  the  hands  of  the  sovereign.  *  *  *  But  until  the  lands  are  so 
seized,  the  alien  has  complete  dominion  over  the  same.  *  *  *  He 
may  convey  the  same  to  a  purchaser.  *  *  *  In  respect  to  these 
general  rights  and  disabilities  we  do  not  find  that  there  is  any  adaiittcd 
difference  between  alien  friends  and  alien  enemies.  During  the  war  the 
property  of  alien  enemies  is  subject  to  confiscation  jia^e  belli,  and  their 
civil  capacity  to  sue  is  suspended.  *  *  *  But  as  to  capacity  to  pur- 
chase, no  case  has  been  cited  in  which  it  has  been  denied ;  and  in  the 
Attorney-General  v.  Wheeden  and  Shales,  Park.  Eep.,  2G7,  it  was  ad- 
judged that  a  bequest  to  an  alien  enemy  was  good,  and,  after  peace, 
might  be  enforced.  Indeed,  the  common  law,  in  these  particulars,  seems 
to  coincide  with  the  jus  gentium.'" 

Story,  J. ;  Fairfax  r.  Hunter,  7  Crancb,  619^. 

Under  the  treaty  of  1778  with  France,  French  subjects  are  entitled 
to  purchase  and  hold  lands  in  the  United  States. 

Chirac  v.  Chirac,  2  Wheat.,  259  ;  Carneal  v.  Banks,  10  Wheat.,  181;  supra,  U 
138,  1-38. 

A  devise  of  land  to  trustees,  in  trust  to  ?ell  the  same  and  pay  the 
whole  proceeds  to  an  alien  cestui  que  trust,  is,  in  equity,  a  bequest  of 
personalty ;  and  the  alien  may  take  and  hold  the  proceeds,  and  can 
compel  the  execution  of  the  trust,  even  as  against  the  state. 

Craig  V.  Leslie,  3  Wheat.,  563. 

The  rule  that  the  cai)acity  of  private  individuals,  British  subjects,  to 
hold  lands  or  other  property  in  this  country  was  not  affected  by  the 
Eevolution,  includes  in  its  protection  corporations,  even  such  as  consist 
of  British  subjects,  and  exist  in  their  corporate  capacity  in  England. 

Soc.  for  Prop,  of  Gospel  v.  New  Haven,  8  Wheat.,  404.  See,  as  to  effect  of  the 
war  of  1812  on  prior  treaties  in  this  respect,  Mr.  Baj'ard,  Sec.  of  State,  to 
Mr.  Lehman,  June  23,  1885.     MSS.  Doin.  Let. ;  cited  supra,  $  150. 

An  alien  mortgagee  may  maintain  a  bill  to  have  the  debt  paid  by  a 
sale  of  the  land  which  had  been  conveyed  to  him  as  security  therefor. 
Hughes  V.  Edwards, 9  Wheat.,  489. 

The  statute  of  11  and  12  William  III,  chap.  C,  enacting  that  the  king's 
natural-born  subjects  witliin  the  realm  should  inherit  and  be  inlicr- 
itable,  and  make  their  pedigrees  and  titles  by  descent  from  any  of  their 

41)1 


§  201. J     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [cHAP.  VIL 

ancestors,  lineal  or  collateral,  altliouuli  the  lather,  mother,  or  other  an 
cestor,  by,  from,  throngh,  or  under  whom  they  mijiht  derive  their  title, 
were  born  out  of  the  King's  allegiance  and  realm,  does  not  apply  to  the 
case  of  a  living  alien  ancestor,  so  as  to  create  a  title  by  heirship  \Yhere 
none  would  exist  by  the  common  hiw  if  the  ancestor  were  a  natural- 
born  subject.  The  language  of  the  statute  imports  no  more  than  a  re- 
moval of  the  defect  for  want  of  inheritable  blood.  It  does  not  in  terms 
create  a  right  of  heirship  where  the  common  law,  inde[)endent  of  alien- 
age, prohibits  it.  It  puts  the  party  in  the  same  situation,  and  none 
other,  that  he  would  be  in  if  his  i)arents  were  not  aliens. 

McCrcery  v.  Someivillo,  9  Wheat.,  354. 

Followed  under  the  similar  statute  of  Texas  (Hart.  Dig.,  fjSo),  McKiiiiicy  r. 
Saviogo,  18  How.,  235. 

An  alien  who  becomes  naturalized  may  hold  lands  accjuircd  before 
his  naturalization. 

Governenr's  Heirs  v.  Robertson,  11  Wheat.,  332. 

Aliens  at  common  law  have  no  inheritable  blood,  and  cannot  take  or 
transmit  land  by  descent. 

Levy  V.  McCartee,  G.  Pet.,  lOi. 

The  right  of  aliens  in  the  United  States  to  sue  in  the  Federal  courts 
is  not  affected  by  the  fact  that  they  reside  here. 

Breedlovc  ctal.  v.  Nicolct,  7  Pet.,  413. 

The  title  acquired  by  an  alien  by  purchase  is  not  divested  until  of- 
fice found.  It  cannot  be  divested  but  by  some  notorious  act,  by  which 
it  may  appear  that  the  freehold  is  in  another. 

Fairfax  v.  Hunter,  7  Cranch,  G03.     Followed*  Craig  v.  Bradford,  3  Wheat.,  504  ; 
Jones  V.  McMasters,  20  How.,  8;  and  see  Cross  r.  De  Valle,  1  Wall.,  1. 

The  incompetency  of  a  citizen  of  the  United  States,  on  account  of 
alienage,  to  hold  lands  in  the  llei)ublic  of  Texas  immediately  ceased  on 
the  admission  of  Texas  into  the  Union. 

Osterman  v.  Baldwin,  G  Wall.,  IIG. 

When  Xew  Orleans  was  governed,  during  the  late  civil  war,  by  niar- 
tial  law,  a  subject  of  a  foreign  j^ower  entering  that  port  with  his  vessel 
under  the  special  license  of  the  proclamation,  became  entitled  to  the 
same  rights  and  i^rivileges  accorded  under  the  same  circumstances  to 
loyal  citizens  of  the  United  States.  Restrictions  placed  upon  them 
operated  equally  upon  him. 

U.  S.  V.  Diekelman,  92  U.  S.,  520. 

The  constitution  of  Texas,  although  declaring  generally  that  aliens 
shall  not  hold  land  in  Texas,  except  by  title  emanating  directly  from 
the  Government,  did  not  divest  their  title,  for  it  adds  that  "they  shall 
have  a  reasonable  time  to  take  po.ssession  of  and  dispose  of  the  same, 
in  a  manner  hereafter  to  be  ])ointed  out  by  law."  Before  the  title  can 
492 


CHAP.  VII.]  ALIENS:    RIGHTS    OF.  [§201. 

be  divested,  proceediugs  for  enforciag  its  forfeiture  must  be  provided 
b}'  law  and  carried  iuto  effect,  and  hitherto  they  have  not  been  provided. 
Airliart  v.  Massieu,  98  U.  S.,  491. 

It  has  been  also  held  that  a  sale  of  lands  in  Texas,  made  before  her 
separation  from  Mexico,  by  a  citizen  to  a  non-resident  alien,  passed  the 
title  to  the  latter,  who  thereby  acquired  a  defeasible  estate  in  them, 
which  he  could  hold  untildeprived  thereof  by  the  supreme  authority, 
upon  the  official  ascertainment  of  the  fact  of  his  non-residence  and 
alienage,  or  upon  the  denouncement  of  a  i)rivate  citizen.  "  By  the  com- 
mon law  an  alien  cannot  acquire  real  property  by  operation  of  law,  but 
ma^'  take  it  by  act  of  the  grantor,  and  hold  it  until  office  found;  that 
is,  until  the  fact  of  alienage  is  authoritatively  established  by  a  public 
officer,  upon  an  inquest  held  at  the  instance  of  the  Government.  The 
proceeding  which  contains  the  finding  of  the  fact  upon  the  inquest  of 
the  officer  is  technically  designated  in  the  books  of  law  as  'office 
found.'  It  removes  the  fact  upon  the  existence  of  which  the  law  di- 
vests the  estate  and  transfers  it  to  the  Government,  from  the  region  of 
uncertainty  and  makes  it  a  matter  of  record.  It  was  devised,  accord- 
ing to  the  old  law  writers,  as  an  authentic  means  to  give  the  King  his 
right  bj'  solemn  matter  of  record,  without  which  he  in  general  could 
neither  take  nor  ijart  with  anything,  for  it  was  deemed  'a  part  of  the 
liberties  of  England,  and  greatly  for  the  safety  of  the  subject,  that  the 
King  may  not  enter  upon  or  seize  any  man's  possessions  ui^on  bare  sur- 
mises, without  the  intervention  of  a  jury.'  By  the  civil  law  some  pro- 
ceeding equivalent  in  its  substantive  features  was  also  essential  to  take 
the  fact  of  alienage  from  being  a  mere  matter  of  surmise  and  conjec- 
ture, and  to  make  it  a  matter  of  record.  Such  a  proceeding  was  usu- 
ally had  before  the  local  magistrate  or  council,  and  might  be  taken  at 
the  instance  of  the  Government,  or  upon  the  denouncement  of  a  private 
citizen.  The  course  pursued  in  the  present  case  seems  to  have  been  in 
conformity  with  common  usage.  The  fact  of  alienage  and  non  residence 
was  thus  officially  established ;  it  became  matter  of  record,  and  the  sub- 
sequent declaration  of  the  commissioner  that  the  land  was  vacant  was 
the  judgment  which  the  law  prescribed  in  such  cases.  The  land  was 
then  subject  to  be  regranted  by  the  commissioner,  as  fully  as  though  no 
previous  grant  to  him  had  ever  been  made." 
Field,  J.;  Phillips  v.  Moore,  100  U.  S.,  208-212. 

"The  efficacy  of  the  treaty  (of  1850  with  Switzerland)  is  declared  and 
guaranteed  by  the  Constitution  of  the  United  States.  That  instrument 
took  cflcct  on  the  fourth  day  of  March,  17<S0.  In  1790,  but  a  few  years 
later,  this  court  said  :  '  If  doubts  could  exist  before  the  adoption  of  tliti 
present  National  Government,  they  must  be  entirely  removed  by  the  si  .\t  h 
artichi  of  the  Constitution,  which  jnovidcs  that  "all  tieaties  made  or 
which  shall  be  made  undci-  tlic,  autliority  of  the  Cnited  States"  shall  be 
tlicsuprenu!  law  of  the  laud,  and  the  judges  in  every  State  sliall  ix'  hound 

49;{ 


§201.]     CITIZKNSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CIIAP.  VII. 

thereby,  aiiytbiii-;-  in  the  coustitulioii  or  laws  of  any  State  to  the  contrary 
not\vithstan(lin<i.'  There  can  be  no  limitation  on  the  power  of  the  people 
of  the  United  States.  By  their  authority  the  State  coustitutious  were 
made,  and  by  their  authority  the  Constitution  of  the  United  States  was 
established,  and  they  had  the  power  to  change  or  abolish  the  State  con- 
stitutions, or  to  make  them  yield  to  the  General  Government  and  to 
treaties  made  by  their  authority.  A  treaty  cannot  be  the  supreme  law 
of  the  land,  that  is,  of  all  the  United  States,  if  any  act  of  a  State  legis- 
lature can  stand  in  its  way.  If  tlie  constitution  of  a  State  (which  is 
the  fundamental  law  of  the  State  and  paramount  to  its  ley;islature)  must 
frive  way  to  a  treaty  and  fall  before  it,  can  it  be  questioned  whether  the 
less  power — an  act  of  the  State  le^iislature — must  not  be  prostrate?  It 
is  the  declared  will  of  the  people  of  the  United  States  that  every  treaty 
made  by  the  authority  of  the  United  States  shall  be  superior  to  the 
constitution  and  laws  of  any  individual  State,  and  their  will  alone  is  to 
decide.  If  a  law  of  a  State  contrary  to  a  treaty  is  not  void,  but  voidable 
only,  by  a  repeal  or  nullification  by  a  State  legislature,  this  certain  con- 
sequence follows,  that  the  will  of  a  small  part  of  the  United  States  may 
control  or  defeat  the  will  of  the  whole.     (Ware  v.  Hylton,  3  Dall.,  199.) 

"It  will  be  observed  that  the  treaty-making  clause  is  retroactive  as 
well  as  prospective.  The  treaty  in  question,  in  Ware  v.  Hylton,  was 
the  British  treaty  of  1783,  which  terminated  the  war  of  the  American 
Eevolutiou.  It  was  made  while  the  Articles  of  Confederation  subsisted. 
The  Constitution,  when  adopted,  applied  alike  to  treaties  '  made  and  to 
be  made.' 

"  We  have  quoted  from  the  opinion  of  Mr.  Justice  Chase  in  that  case, 
not  because  we  concur  in  everything  said  in  the  extract,  but  because  it 
shows  the  views  of  a  powerful  legal  mind  at  that  early  i>eriod,  when 
the  debates  in  the  convention  which  framed  the  Constitution  must  have 
been  fresh  in  the  memory  of  the  leading  jurist  of  the  country. 

"  In  Chirac  r.  Chirac  (2  Wheat.,  259),  it  was  held  by  this  court  that 
a  treaty  with  France  gave  to  her  citizens  the  right  to  purchase  and 
hold  laud  in  the  United  States,  removed  the  incapacity  of  alienage  and 
placed  them  precisely  in  the  same  situation  as  if  ihey  had  been  citizens 
of  this  country.  The  State  law  was  hardly  adverted  to,  and  seems  not 
to  have  been  considered  a  factor  of  any  importance  in  this  view  of  the 
case.  The  same  doctrine  was  reaflBrmed  touching  this  treaty  in  Carneal 
r.  Banks  (10  ibid.,  181),  and  with  respect  to  the  British  treaty  of  1794  in 
Hughes  V.  Edwards  (9  ibid.,  489).  A  treaty  stipulation  may  be  eflectual 
to  protect  the  land  of  an  alien  from  forfeiture  by  escheat  under  the  laws 
of  a  State.  (Orr  v.  Hodgeson,  4  ibid.,  453.)  By  the  British  treaty  of  1794 
'  all  impediment  of  alienage  was  absolutely  leveled  with  the  ground, 
despite  the  laws  of  the  States.  It  is  the  direct  constitutional  question 
in  its  fullest  conditions.  Yet  the  Supreme  Court  held  that  the  stipu- 
lation was  within  the  constitutional  powers  of  the  Union.  (Fairfax's 
Devisees  v.  Hunter's  Lessee,  7  Cranch,  027.  See  Ware  v.  Hylton,  3  Dall., 
494 


CHAP.  VII  ]  ALIENS:    RIGHTS    OF.  [§201. 

242;  8  Op.,  Att'js-Geu.,  417.)  Mr.  Calhoiiu,  after  layiug  down  certain 
exceptions  and  qualifications  which  do  not  eflfect  this  case,  says: 
'  Within  these  limits  all  questions  which  may  arise  between  us  and 
other  powers,  be  the  subject-matter  what  it  may,  fall  within  the  treaty- 
making  power  and  may  be  adjusted  by  it.'  (Treat,  on  the  Const,  and 
Gov.  of  the  U.  S.,  204.) 

"  If  the  jS^ational  Government  has  not  the  power  to  do  what  is  done  by 
such  treaties,  it  cannot  be  done  at  all,  for  the  States  are  expressly  for- 
bidden to  'enter  into  any  treaty,  alliance,  or  confederation.'  (Const., 
Art.  I,  §  10.) 

'•It  must  always  be  borne  in  mind  that  tbe  Constitution,  laws,  and 
treaties  of  the  United  States  are  as  much  a  part  of  the  law  of  every 
State  as  its  own  local  laws  and  constitution.  This  is  a  fundamental 
principle  in  our  system  of  complex  national  polity.  (See  also  Shanks 
V.  Dupont,  3  Pet.,  242;  Foster  &  Elam  v.  :^reilson,  2  ibid.,  253;  The 
Cherokee  Tobacco,  11  Wall.,  GIG;  Mr.  Pinckney's  speech,  3  Elliot's 
Constitutional  Debates,  231;  The  People,  &c.  v.  Gerke  &  Clark,  5  Cal., 
381.) 

"We  have  no  doubt  that  this  treaty  is  within  the  treaty-making 
power  conferred  by  the  Constitution.  And  it  is  our  duty  to  give  it  full 
effect." 

Swayue,  J.;  Haueusteiu  v.  Lynbam,  100  U.  S.,  483.     See  stqn-a,  ^  138,  1G3. 

The  State  legislation  in  this  relation  may  be  thus  analyzed: 

Statutes  in  ivhich  there  are  no  7-estrictions  on  the  rights  of  aliens  to  acquire  and  hold  land : 

Alabama,  Code,  1876,  §§  2860,2861;  Colorado,  Stat.,  1860;  Florida,  Stat.,  1880; 
Illinois,  Eev.  Stat.,  1880,  cbap.  6,  $  1;  Iowa,  Code,  1873,  §  1908;  Kansas,  Gen.  Stat., 
1860,40;  Maine,  Rev.  Stat.,  1857,  449;  Massacbusetts,  Eev.  Stat.,  1873,  cbap.,  91; 
Micbigau,  Compiled  Laws,  1871,  79;  Howell's  Annot.  Stat.,  $  5775;  Minnesota, 
Gen.  Stat.,  1873,  $  22;  Mississippi,  Eev.  Code,  1880,  $  1230;  Missouri,  Eev.  Stat., 
1879,  $  3-'5;  Obio,  Eev.  Stat.,  1880,  $  4173;  Nebraska,  Eev.  Stat.,  1873,  53;  New 
Ilampsbire,  Eev.  Stat.,  1867,  253.;  New  Jersey,  Eev.  of  1877,  6,  296;  Nortb  Carolina, 
Code,  1883,  $  7;  Soutb  Carolina,  Eev.  Stat.,  1873,  440-5.37;  West  Virginia,  Acts  of 
1882,  cbap.  Ixx;  Wisconsin,  Eev.  Stat.,  1878,  $  2-200. 

States  u-hich  make  the  iiermanent  holding  of  lands  h\j  aliens  dvpcmlcnt  upon  residcniship 
or  vpon  a  declaration  of  intended  naturalization,  hut  ichich  give  to  aliens  inhcrUing  land  a 
term  varying  from  three  to  nine  years  to  dispose  of  the  title: 

Arkansas,  Code,  1874,  $  21C7;  California,  Code,  1876,  6,  404;  Connecticut,  Stat., 
1866,  1:37 ;  Delaware,  Eev.  Code,  1874,  493 ;  Indiana,  Eev.  of  1876,  cbap.  11 ;  Ken- 
rucky.  Gen.  Stat.,  1873,  191;  Maryland,  Code,  1860,  18;  New  York,  Fay's  Dig.,  1876, 
552,  553;  Tennessee,  Stat.,  1871,  953;  Virginia,  Code,  1873,  130. 

Texas,  rigbts  conditioned  either  ou  (1)  reciprocity,  or  (2)  declaration  of  intended 
citizcnsbip.     (Eev.  Stat.,  1879,  H  9,  1658.) 

In  Georgia,  by  tbc  Code  of  1873,  ^  2676,  title  is  condilioiud  and  iuiiiroveinents  being 
made  and  linjited  to  160  acres. 

In  Peun.sylvania  alien  absentee  proprietorship  is  limiled  (<>  5,000  acn'.s  for  carb 
iiolder.     (IJrigbt.  Purd.,  67.) 

Ah  to  Texas,  see  Sattegart  v.  Scbriiapn",  35  Tex.  323. 

As  to  New  York,  see  Ifei^ney  r.  Brooklyn,  :i3  Barb.,  360;  Goodrich  r.  Russell,  42 
N.  Y.,  177;  Kttciibeiincr  r.    Ili-lliiian,  66  B:irl).,  :!71,  where,  it  w:is  hcM   tli.it   nlicus 

495 


§  201.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VH. 

caunot  take  land  as  successors  in  intestacy.  Conipaie  Lawrence  com.  snr  droit  int., 
3,89. 

As  to  Kentucky,  SCO  Yeaker  r.  Yeaker,  1  Mete.  33;  Eastlake  c.  IJodaquest,  11 
Bush.  42. 

As  to  Iowa,  scePurczell  r.  Siuidt,  21  Iowa,  MO;  Greenliold  r.  Stan  forth,  21  Iowa,  595. 

As  to  Michigan,  see  Crane  v.  Reader,  21  Mich.,  21. 

As  to  Nevada  raining  claims,  see  Golden  Fleece  v.  Cahlo  Co.,  12  Nev.  312. 

By  tbe  laws  of  Missomi,  in  force  in  ISGG,  an  alien  wa.s  capable  of 
taking  by  descent  lands  in  that  State,  and  of  holding  and  alienating 
them,  if  he  either  resided  in  the  United  State.s,  and,  by  taking  the  oath 
prescribed  by  the  act  of  Congress,  had  declared  his  intention  to  become 
a  citizen,  or  resided  in  Missouri,  although  the  ancestor  through  wliom 
he  claimed  was,  at  the  time  the  descent  was  cast,  an  alien,  who,  by 
reason  of  his  nouresideuce,  was  incapable  of  inheriting. 

Sullivan  r.  Burnett,  10;')  U.  S.,  334. 

The  statute  of  1855,  which  gave  to  a  non-re.sident  alien  the  right 
within  a  limited  period  to  sell  and  convey  the  lauds  whereof  the  in- 
testate died  seized,  apjdied  only  where  at  the  time  of  his  death  there 
was  no  person  capable  of  taking  them  by  descent. 
Ibid. 

The  statute  of  JN'ew  York  of  May  31,  1881,  imposing  a  tax  on  every 
alien  passenger  who  shall  come  by  vessel  from  a  foreign  country  to  the 
port  of  Xew  York,  and  holding  the  vessel  liable  for  the  tax,  is  a  regula- 
tion of  foreign  commerce,  and  void. 

Henderson  r.  Mayor  of  New  York,  92  U.  S.,  259  ;  Cliy  Lung  v.  Freeman,  ibid., 
275;  cited  and  atHrmed  in  People  r.  Compagnic  G(5n<5rale  Transatlantiqne, 
107  U.  S.,  59. 

The  statute  is  not  relieved  from  this  constitutional  objection  by  de- 
claring in  its  title  that  it  is  to  raise  mone^'  for  the  execution  of  the 
inspection  laws  of  the  State,  which  authorize  passengers  to  be  inspected 
in  order  to  determine  who  are  criminals,  paupers,  lunatics,  orphans,  or 
infirm  persons,  Avithont  means  or  capacity  to  support  themselves,  and 
subject  to  become  a  public  charge,  as  such  facts  are  not  to  be  ascertained 
by  inspection  alone. 

People  r.  Compagnie  Gdn6ralo  Transatlantiqne.  107  U.  S.,  59. 

In  the  courts  of  the  United  States  alien  friends  are  entitled  to  claim 
the  same  protection  of  their  rights  as  citizens. 

Taylor  t".  Carpenter,  3  Story,  4.58.  See,  on  this  topic,  Whart.  Confl.  of  Laws, 
H  17/. 

A  court  of  equity  will  treat  a  devi.se  by  an  alien  as  valid  against  heirs 
at  law  until  the  title  of  the  alien  has  been  imi)eached  by  proceedings 
on  the  part  of  the  state.  All  the  authorities  agree  that  at  common 
law  an  alien  can  take  lands  by  purchase — that  is,  by  grant  or  devise — 
though  not  by  descent;  although  the  estate  vests  in  the  alien  not  for 
his  own  benefit  but  for  the  benefit  of  the  state.  If  the  state  sees  fit 
49G 


CHAP,  til]  ALIENS:    EIGHTS    OF.  [§201. 

to  seize  the  lands,  the  same  rule  must  prevail  in  equity,  for  it  is  a  gen- 
eral principle  of  equity  that  equitable  estates  are  subject  to  the  same 
modes  and  condition  as  corresponding  legal  estates. 
Cross  V.  De  Valle,  1  Cliff.,  282. 

An  alien  cannot,  under  the  laws  of  the  United  States  governing  the 
registry  of  vessels,  be  deemed  master  of  a  vessel,  even  for  the  purj)ose 
of  defeating  his  claim  to  a  lieu  for  wages. 
The  Dubuque,  2  Abb.  U.  S.,  20. 

Aliens  cannot  claim  mining  lauds  under  the  act  of  May  10,  1872. 

North  Noonday  Min.  Co.  v.  Orient  Min.  Co.,  1  Fed.  Eep,,  522 ;  6  Sawyer,  299. 

Alienage  does  not  impair  one's  j)roperty  in  a  trade-mark,  and  may 
give  him  a  jiersonal  right  to  sue  in  the  circuit  court  for  an  infringe- 
ment. 

La  Crois  v.  May,  15  Fed.  Eep.,  236.     Whart.  Confl.  of  Laws.  U  Vt  ff. 

The  authority  given  by  law  to  grant  patents  is  conlBlned  to  citizens  of 
the  United  States.  The  privilege  is  a  monopoly  in  derogation  of  com- 
mon right,  and,  as  it  is  not,  ought  not  to  be  extended  to  foreigners. 

1  Op.,  no,  Lincoln,  1802. 

The  courts  of  the  United  States  are  at  all  times  open  to  the  subjects 
of  a  foreign  power  in  friendly  relations  with  us.  And  more  especially 
will  such  remedies  be  extended  in  case  of  fraud. 

1  Op.,192,Ensh,1816. 

An  alien  can  inherit,  carry  away,  and  alienate  personal  property  with- 
out being  liable  to  any/«ts  detractus.  But  real  estate  is  subject  to  the 
laws  of  the  respective  States. 

1  Op.,  275,  Wirt,  1819. 

The  right  of  pre-emption,  under  the  acts  of  1830  and  1834,  accrues  to 
persons  who  were  not  citizens  of  the  United  States  at  the  time  of  their 
passage,  especially  where  the  local  law  authorizes  them  to  hold  and 
convey  real  estate. 

3  Op., 91,  Butler,  1><3(J. 

Aliens  coming  within  our  territory  are  entitled  to  the  same  protection 
in  their  .personal  rights  as  our  own  citizens  and  no  more. 

3  Op.,  254,  Butler,  1837.     Whart.  Confl.  of  Laws,  ^  17/. 

An  alien  may  hold,  convey,  and  devise  real  estate  in  the  District  of 
Columbia. 

5  Op.,C21,  Crittenden,  1852. 

The  policy  of  the  United  States  in  all  ca.ses  of  complaints  made  by 
foreigners  is  to  extend  to  them  the  same  means  of  redress  as  is  enjoyed 
by  our  own  citizens. 

7  Op.,229,C«sbing,  13.'j.5.     Wliai  f.  Coiill.  of  Lawn,  ^S^  17/ 
S.  .Mis.  1G2— VOL.  II 313  407 


§  202.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CHAP.  VII. 

Aliens  are  entitled  to  purchase  public  lands,  subject  only  as  to  their 
tenure  to  such  limitations  as  particular  States  may  enact,  with  the  ex- 
ception that  pre  euiptions  are  secured  only  to  such  as  have  declared 
their  intention  to  become  naturalized. 

7  Op.,3rjl,  Cuebiug,  1855. 

The  estates  of  foreigners  dying  in  the  United  States  are  settled  by 
the  local  authorities.  The  consul  of  the  decedent's  country  can  inter- 
vene of  right  oidy  by  way  of  surveillance,  and  without  jurisdiction. 

8  0p.,9i?,Cusbing,ie5G. 

The  prevailing  rule  in  the  various  States  is  that  aliens  can  inherit. 
12  0p.,5,  Staubcry,  18G6. 

The  treaties  bearing  on  alienage  are  noticed  in  part  in  prior  sections. 
Supra,  H  U'2ff. 

(2)  Not  compkllable  to  miutahv  service. 
§  202. 

"There  is  no  i)rinciple  more  distinctly  and  clearly  settled  in  the  law 
of  nations  than  the  rule  that  resident  aliens  not  naturalized  are  not  lia- 
ble to  perform  military  service.  We  have  uniformly  claimed  and  in- 
sisted upon  it  in  our  intercourse  with  foreign  nations.  While  the  State 
of  Indiana  holds  that  an  alien  becomes  a  citizen  by  one  year's  residence 
and  declaration  of  intention  to  become  a  citizen  of  the  United  States, 
the  law  of  Great  Britain  holds  that  a  native  British  subject  owes  alle- 
giance to  the  British  Government  until  he  has  comi)letely  effected  his 

naturalization  in  the  United  States  and  under  the  laws  of  Congress. 

*     *     * 

"  It  is  proper  to  state,  however,  that  in  every  case  when  an  alien  has 
exercised  suflrage  in  the  United  States  he  is  regarded  as  having  for- 
feited his  allegiance  to  his  native  sovereign,  and  he  is,  in  consequence 
of  that  act,  like  any  citizen,  liable  to  perform  military  service.  It  is 
understood,  moreover,  that  foreign  Governments  acquiesce  in  this  con- 
struction of  the  law.  It  is  hoped  that  under  this  construction  your 
militia  force  will  not  be  sensibly  reduced." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Morton,  Sept.  5,  1862.    MSS.  Doni.  Let. 

As  to  obligation  of  aliens  in  sucb  cases  in  foreign  states,  see  supra,  $  182. 

As  to  local  allegiance,  see  infra,  $  203;  and  see  Mr.  Fisb,  Sec.  of  State,  to  Mr. 

Foster,  Oct.  31,  1873.    MSS.  Inst.,  Mcx. 
As  to  treaties  in  tbis  relation,  see  supra,  ^^  141^. 

"  Your  dispatch  of  June  29,  Ko.  322,  has  been  received.  If  the  min- 
ister of  Switzerland,  residing  at  Paris,  had  been  informed  of  all  the  facts 
bearing  on  the  question  which  he  has  raised,  I  cannot  believe  that  he 
would  have  thought  it  necessary  to  offer  objections  against  the  Presi- 
dent's proclamation  concerning  the  liability  of  emigrants  in  the  United 
States  to  perform  military  service. 
498 


CHAP.  VII.]  ALIENS:    EXEMPT    FROM    CONSCKIPTIOX.  [§  202. 

"  The  Federal  Coustitution  authorizes  Congress  to  adopt  uDiform  rules 
of  naturalizatioD,  aud  Cougress,  heretofore,  prescribed  the  conditions  of 
live  years'  residence,  a  preliminary  declaration  of  intention  to  become  a 
citizen,  and  a  subsequent  oath  of  renunciation  of  the  native  allegiance 
and  acceptance  of  the  new  one. 

''  But,  on  another  hand,  the  Federal  Constitution  recognizes  a  citi- 
zenshii)  of  each  State,  and  declares  that  the  citizens  of  one  State  shall 
enjoy  the  right  of  citizenship  in  every  other  State,  and  leaves  it  to  each 
State  to  prescribe  the  conditions  of  its  own  j^roper  citizenship.  By  the 
constitutions  of  several  of  the  States,  especially  the  new  ones,  the  pre- 
liminary declaration  of  intention,  above  mentioned,  entitles  the  maker 
of  it  to  all  the  rights  of  citizenship  in  that  State,  aud  they  freely  enjoy 
and  exercise  those  rights.  They  enjoy  ample  protection  and  exercise 
suffrage.  It  was  with  reference  to  this  state  of  facts  that  Congress 
passed  the  law  which  is  recited  iu  the  President's  ^proclamation.  And 
they  passed  another  act,  which  authorized  the  Secretary  of  State  to 
extend  the  protection  of  the  Government  to  all  persons  who,  by  any 
laws  of  the  United  States,  are  bound  to  render  military  service.  The 
two  laws  seem  to  this  Government  to  be  reasonable  and  just,  aud  they 
constitute  a  new,  additional,  and  uniform  law  of  Federal  naturalization. 
But  it  was  foreseen  that  some  emigrants,  who  had  declared  their  inten- 
tion, might  complain  of  suriniseif  they  were'  immediately  subjected  to 
conscription.  To  guard  against  this  surprise  the  proclamation  was 
issued,  giving  them  ample  notice  of  the  change  of  the  law,  with  the  al- 
ternative of  removal  from  the  country  if  they  should  prefer  removal  to 
remaining  here  on  the  footing  on  which  Congress  had  brought  them. 
Surely  no  foreigner  has  a  right  to  be  naturalized  and  remaiu  here,  in  a 
time  of  public  danger,  and  enjoy  the  protection  of  a  Government,  with- 
out submitting  to  general  requirements  needful  for  his  own  security. 
The  law  is  constitutional,  and  the  persons  subjected  to  it  are  no  longer 
foreigners,  but  citizens  of  the  United  States.  The  law  has  been  acqui- 
esced in  by  other  foreign  powers,  and  I  am  sure  that  Switzerland  can- 
not be  disposed  to  stand  alone  iu  her  i)rotest  against  it." 

Mr.  Seward,  Sec.  of  State,  to  ilr.  Daytou,  July  i?0,  1863.     MSS.  lust.,  France ; 
Dip.  Corr.,  1^63. 

'•Your  dispatch  of  the  1.3th  ultimo,  Xo.  133,  in  relation  to  the  case 
of  certain  citizens  of  the  United  States,  who  were  impressed  into  the 
military  service  of  Mexico,  and  who  are  now  said  to  be  actually  serving 
in  the  Thirty  first  Battalion  of  the  army  of  that  liepublic,  has  been  re- 
ceived. 

"The  groun<ls  assumed  by  you  in  the  correspondence  between  your- 
self and  Mj'.  l'\*rniin(h'Z,  in  regard  to  the  demand  for  tlie  immediate  re- 
lease of  these  citizens,  following,  as  they  do,  the  views  expressed  by  the 
Department  in  its  instruction  of  the  9th  of  October,  are  in  entire  accord 
with  tlie  ])ositi()n  whicli  this  (loNcitimenl  itssiiriies  in  relation  to  the  nii- 


§  202.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CHAP.  VII. 

frieudly  and  unwarranted  course  of  the  Mexican  civil  and  military  au- 
thorities towards  these  citizens  of  the  United  States,  and  your  course 
is  approved. 

"  The  suggestion  of  the  minister  for  foreign  allairs,  in  his  note  to  you 
of  the  30th  of  October  last,  is  to  the  effect  that  the  parties  thus  forcibly 
compelled  to  enter  the  military  service  of  a  foreign  power  must,  in  order 
to  secure  their  release,  resort  to  the  slow  formalities  of  judicial  proced- 
ure in  the  courts  of  the  country  whose  civil  and  military  oflicers  com- 
mitted the  wrong.  Your  protest  against  this  position,  as  novel  as  it  is 
believed  to  be  untenable,  was  apt  and  timely.  INIr.  Fernandez's  views 
of  international  obligations  in  this  regard,  as  expressed  in  his  note  of 
the  30th  of  October,  cannot  for  a  moment  be  accepted  by  this  Govern- 
ment. 

"  In  addition  to  the  precedent  of  Emilio  Baiz's  case,  which  you  cite 
in  your  reply  to  the  minister,  several  instances  are  found  in  the  records 
of  this  Dei)artment  in  which,  during  the  existence  of  our  late  civil  war, 
the  Mexican  Government  applied  to  this  for  protection  to  Mexicans 
resident  in  various  States  against  demands  of  the  local  recruiting  ofli- 
cers of  the  United  States  upon  these  Mexican  citizens  to  serve  in  the 
armies  of  this  Eepublic.  In  all  such  cases  it  is  found  to  have  been  the 
practice  of  this  Department  to  bring  the  subject  at  once  to  the  atten- 
tion of  the  Secretary  of  War,  and  no  single  instance  is  met  with  in 
which  the  3Iexican  citizen's  claim  to  exemption  from  military  service 
in  the  armies  of  the  United  States  was  not  promptly  recognized  and  re- 
spected by  this  Government. 

"As  to  the  proof  of  citizenship  of  the  persons  now  in  question,  their 
status  as  citizens  of  the  United  States  was  established  to  the  satisfoc- 
tion  of  this  Government  before  instructing  you  on  the  subject,  and  when 
that  point  is  settled  as  required  by  the  laws  of  the  United  States,  inter- 
national courtesy  dictates  that  that  of  Mexico  should  hold  it  to  be  con- 
cluded. The  peculiarities  of  Buruato's  case  are  sufiiciently  explained  in 
my  Ko.  71.  Should  the  men  not  have  been  already  released  on  your 
receipt  of  this  instruction,  you  will  lose  no  time  in  pressing  for  their 
speedy  discharge  from  the  service  in  which  thej'  are  held,  and  you  will 
report  the  result  to  the  Department  without  delay." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Morgan,  Dec.  8,  1880.    MSS.  lust.,  Mes ;  For. 
Eel.,  1881. 

"  With  reference  to  the  cases  of  American  citizens  impressed  into  the 
military  service  of  Mexico,  which  were  reported  to  the  Department  by 
Mr.  Schuchardt,  the  United  States  vice  consul  at  Piedras  Xegras,  and 
in  regard  to  which  you  were  instructed,  and  have  had  correspondence 
with  Mr.  Mariscal,  I  transmit  a  copy  of  a  dispatch  of  the  18th  ultimo 
from  Mr.  Schuchardt.  His  suggestion  that  the  persons  or  their  repre- 
sentatives so  impressed,  and  who  afterwards  died  or  were  killed  or  dis- 
charged, should  have  a  pecuniary  indemnity  from  that  (iovernment, 
500 


OlIAl'.  VII.]         ALIENS:    EXEMPT    FROM    CONSCRIPTION.  [^  202. 

seems  to  be  at  least  wortliy  of  cousideratiou.  It  is  iioloiious  tbat  the 
impressment  of  American  seamen  into  tbe  naval  service  of  a  foreign 
power  was  at  one  time  a  serious  grievance,  not  to  be  acquiesced  in,  and 
raised  a  question  upon  wbicb  all  parties  in  this  country  were  unanimous 
in  regarding  as  one  of  international  character.  Public  sentiment  here 
in  regard  to  tbat  subject  was  borne  in  mind  during  tbe  late  civil  war. 
The  number  of  persons  of  foreign  birth,  especially  in  the  large  cities, 
led  to  the  accidental  or  involuntary  enrollment  of  unnaturalized  aliens 
in  the  military  or  naval  service.  These,  however,  as  is  shown  by  the 
large  space  in  the  records  of  the  Department  at  the  time,  were  at  once 
discharged  upon  complaint  made  and  in  the  absence  of  proof  of  their 
naturalization.  It  is  hoped,  therefore,  that  in  considering  this  subject 
the  Mexican  Government  will  not  only  have  due  regard  to  the  unlaw- 
fulness of  the  impressment,  but  to  the  universal  and  strong  sentiment 
upon  the  subject  which  pervades  this  country." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Morgan,  Mar.  14, 1881.  MSS.  Inst.  Mex.  ;  For. 
Kel.,  1881. 

As  to  election  given  to  aliens  in  the  United  States  to  enlist  or  he  expelled,  see 
Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  July  20,  1863,  quoted  infra,  ^  206. 

An  alien  can  be  enlisted  in  the  naval  or  Marine  Corps  service  of  the 
United  States,  and  is  bound,  the  same  as  a  citizen,  to  serve  for  the  term 
of  his  enlistment. 

4  Op.,  350,  Nelson,  1844.     See  3  Op.,G70,  Legar^,  1831.     Infra,  §  392. 

It  was  held  by  Mr.  Gushing,  in  1854,  that  officers  of  the  Army  em- 
ployed in  recruiting  may  enlist  persons  not  naturalized  as  citizens  of 
the  United  States,  on  the  ground  that  the  provision  of  the  act  of  1802, 
limiting  enlistments  to  citizens,  has  not  been  re-enacted  in  any  subse- 
quent law. 

6  Op.,  474,  Cushiug,  1854.     Infra,  392. 

The  requirements  at  present  are  as  follows : 

Sec.  inc.  Eecruits  enlisting  in  the  Army  must  be  effective  and  able- 
bodied  men,  and  between  the  ages  of  sixteen  and  thirty-five  years  at 
the  time  of  their  enlistment.  This  limitation  as  to  age  shall  not  apply 
to  soldiers  re-enlisting. 

See  In  re  McDonald,  1  Lowell,  100. 

Sec.  1117.  Ko  person  under  the  age  of  twenty-one  years  shall  be  en- 
listed or  mustered  into  tbe  military  service  of  tbe  United  States  with- 
out the  written  consent  of  his  parents  or  guardians :  rrovided,  That 
such  minor  has  such  i)arents  or  guardians  entitled  to  liis  custody  and 
control. 

S<,'C  Shorncr'a  case,  1  Car.  L.  Rep.,  55. 

Sec.  1118.  jS"o  minor  under  the  age  of  sixteen  years,  no  insane  or  in- 
toxicated person,  no  deserter  from  the  military  service  of  the  United 
States,  and  no  person  who  has  been  convicted  of  [any  criminal  offcnue^] 
[a  felony]  shall  be  enlisted  or  n)usteied  into  the  military  service. 

501 


§202.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAI'.  VII. 

"During-  the  civil  war  in  the  United  States  all  i)eisons  who  had  voted 
as  State  citizens  were  claimed  by  the  United  States  Government  as 
liable  to  the  conscrii)tion  ;  and  the  act  of  Confiress  of  March  3,  ISOo,  ex- 
pressly declared  that  the  levy  should  include  '  all  persons  of  foreign 
birth  who  shall  have  declared,  on  oath,  their  intentions  to  become  citi- 
zens.' 

"Mr.  Sellers,  a  British  subject  who  had  announce*!  his  intention  to 
become  naturalized,  ai)plied,  in  October,  1802,  to  be  informed  whether 
he  could  claim  the  i)r()lection  of  the  British  (Government.  He  was  told 
that,  as  he  had  so  acted  without  consulting  the  British  Government,  he 
must  not  exjiect  that,  should  a  case  arise  in  which  its  interference 
might  be  requested,  it  would  give  any  opinion  of  the  view'  which  it 
might  take  of  such  a  case. 

'•In  180L*  certain  native-born  British  subjects  in  Wisconsin  claimed 
that,  although  they  had  voted  at  elections  they  had  done  so  under  the 
State  law  as  aliens,  and  had  not  thereby  forfeited  their  British  nation- 
ality. 

"Mr.  Seward  replied  that,  so  far  as  the  executive  authority  of  the 
United  States  was  concerned,  no  foreigner  who  had  not  been  natural- 
ized, or  who  had  not  exercised  the  right  of  suflrage,  had  hitherto  been 
required  to  serve  in  the  militia. 

"  M.  Mercier,  the  French  minister,  wrote,  in  a  circular  to  the  French 
consuls,  that  Frenchmen  who  had  voted  illegally  in  the  United  States 
had,  no  doubt,  rendered  themselves  liable  to  legal  penalties  in  that 
country,  but  that  they  had  not  forfeited  their  French  nationality  or  their 
right,  as  aliens,  to  be  exeuii)t  from  compulsory  military  service.  And 
he  referred  to  the  laws  of  some  of  the  States  which  admit  aliens  to  the 
exercise  of  the  elective  franchise.  (Pari.  Pap,  No.  530,  1802.)  The 
matter  was  referred  by  Lord  Lyons  to  the  llome  Government,  and  he 
was  instructed  to  abide  by  the  decisions  of  the  American  law  courts. 

"  In  1803  certain  able-bodied  male  i)ersons  of  foreign  birth,  who  had 
declared  on  oath  their  intention  to  become  American  citizens,  were  called 
upon  for  military  duty  in  the  United  States.  On  this,  the  British  Gov- 
ernment suggested  that  British  subjects  who  had  merely  declared  their 
intention  to  become  American  citizens,  but  had  not  exercised  any  po- 
litical franchise  in  consequence  of  such  declaration,  ought  to  be  allowed 
a  reasonable  period  alter  the  passing  of  the  act  to  exercise  the  option 
of  leaving  the  United  States  or  of  continuing  residing  therein  with  the 
annexed  conditions.  The  United  States  Government  thereupon  allowed 
sixty-five  days  to  such  persons  to  exercise  their  option,  and  the  British 
Government  refused  to  interfere  on  behalf  of  any  intended  citizens  who 
had  not  availed  themselves  of  the  opportunity.  (Pari.  Pap.  No.  337, 
1803.) " 

1  Ilalleck's  Int.  Law  (Baker's  ed.),  365. 

"  In  1801,  during  the  American  civil  war,  the  British  Government 
declared  that  if  enforced  enlistments  of  British  subjects  for  the  war  were 
persisted  in,  the  Government  would  be  obliged  to  concert  with  other 
neutral  ])owers  for  the  protection  of  their  respective  subjects;  but 
neither  in  the  Northern  or  Southern  States  was  the  discharge  of  any 
British  subject  enlisted  against  his  will,  refused  on  ])roper  representa- 
tion. There  is  no  international  law  prohibiting  the  Government  of  any 
country  from  requiring  aliens  to  serve  in  the  militia  or  police,  yet  at 
the  above  mentioned  date  the  British  Government  intimated  that,  if  the 
United  States  permitted  no  alternative  of  providing  substitutes,  the 

502 


CHAP.  VII.J  ALIENS:    LOCAL   ALLEGIANCE.  [§  203. 

position  of  British  subjects  to  be  embodied  iu  that  militia  '  would  call  for 
every  exertiou  beiu^'  made  iu  their  favor  on  the  i)art  of  Her  Majesty's 
Governmeut.'  The  British  Goverument  iu  18G2,  iuformed  Mr.  Stuart 
that  as  a  geueral  principle  of  international  law  neutral  aliens  ought 
not  to  be  compelled  to  perform  any  military  service  (/.  e.  working  in 
trenches),  but  that  allowance  might  be  made  for  the  conduct  of  author- 
ities in  cities  under  martial  law,  and  in  daily  peril  of  the  enemy;  and 
in  1864  the  British  Goverument  saw  no  reason  to  interfere  in  the  case 
of  neutral  foreigners  directed  to  be  enrolled  as  a  local  police  for  New 
Orleans. 

"  By  the  United  States  act,  April  14,  1802,  naturalized  aliens  are  en- 
titled to  nearly  the  same  rights,  and  are  charged  with  the  same  duties, 
as  the  native  inhabitants;  and  aliens  not  naturalized  if  they  have  at 
an3'  time  assumed  the  right  of  voting  at  a  State  election,  or  held  oflSce, 
are,  according  to  the  opinion  of  Mr.  Attorney-General  Bates,  liable  to 
the  acts  for  enrolling  the  national  forces.  (See  also  act  3d  March,  1863, 
and  act  2-4th  February,  1SU4  ;  proclamation  of  President  May  8,  1863.) 
This  was  acted  on  during  the  American  civil  war,  and  tacitly  acquiesced 
in  by  the  British  Government." 

2  Halleck's  Int.  Law  (Baker's  ed.)  6. 

(3)  Subject  to  local  allegiance. 

§  203. 

Aliens  residing  iu  the  United  States  are  as  much  responsible  for 
breach  of  neutrality  laws  as  are  citizens  ;  aliens  while  within  our  juris- 
diction and  enjoying  the  protection  of  the  laws,  being  bound  to  obedi- 
ence to  them,  and  to  avoid  disturbances  of  our  peace  within,  or  acts 
which  would  commit  it  without,  equally  as  citizens  are. 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Genet,  June  5, 17l!3.  MSS.  Notes,  For.  Leg. ; 
1  Wait's  St.  Pap.,  80 ;  1  Am.  St.  Pap.  (For.  Eel.),  IGO.  See  to  same  general 
effect  Carlisle  v.  U.  S.,  16  Wall.,  147;  and  as  to  local  allegiance,  see  gen- 
erally supra,  ^  7. 

"  Aliens  in  general,  being  within  our  limits  and  jurisdiction,  are  bound 
to  respect  our  laws,  and  cannot  exact  any  other  mode  of  promulgation 
than  that  which  is  marked  out  for  the  information  of  our  own  citizens." 

Mr.  Randolpb,  Sec.  of  State,  to  Mr.  Hammond,  April  13, 1795.  MSS.  Notes,  For. 
Leg. 

"The  most  inviolable  and  the  most  obvious  right  of  an  alien  resident 
is  that  of  withdrawing  himself  from  a  limited  and  temporary  allegiance 
having  no  other  fonndation  than  his  voluntary  residence  itself.  The 
infraction  of  tliis  right  is  consequently  among  the  greatest  of  injuries 
that  can  be  done  to  individuals,  and  among  the  justest  of  causes  for  the 
interposing  protection  of  other  Governments." 

Mr.  Madison,  Sec.  of  State,  to  Mr.  Pichon,  May  20, 1803.     MSS.  Notes,  For.  Log. 

Sailors,  when  on  shore,  arc  subject  to  the  police  control  of  the  sover- 
eign of  the  shore,  unless  when  otherwise  provided  by  treaty. 

Mr.  IJuchanun,  Sec.  of  State,  to  Mr.  Leal,  Nov.  I.'),  1817.  MSS.  Notes,  Brazil. 
Mr  Clayton  to  Mr.  Macedo,  Apr.  11,  1849;  ihid. 

503 


§  20o.'J    CITIZENSHIP,  NATUKALIZATIOX,  AND  ALIENAGE.    [clIAP.  Vll. 

''Every  foreiyuer  born,  residing  in  a  country,  owes  to  that  coimtry 
allegiance  and  obedience  to  the  laws  as  long  as  he  remains  in  it,  as  a 
duty  imposed  upon  him  by  tbo  mere  fixct  of  his  residence,  and  the  tem- 
porary ])roteetion  which  he  enjoys,  and  is  as  much  bound  to  obey  its 
laws  as  native  subjects  or  citizens.  This  is  the  universal  understanding 
in  all  civilized  states,  and  nowhere  a  more  established  doctrine  than  in 
this  country." 

Mr.  Webster,  Sec.  of  State,  report  to  the  Presidcut ,  Dec.  2'^,  18.")1.  G  Webster's 
Works,  5*24.  This  report  (Tlirasber's  case)  is  not  on  record  in  tbo  Depart- 
ment. 

As  to  Tbrasber'a  case,  see,  furtber,  siqna,  U  190,  198;  infra,  ^  220,  230,  244, 
357. 

"jMr.  Jefferson,  when  Secretary  of  State,  in  his  letter  to  Gouverneur 
Morris  of  the  ICth  of  August,  1793,  speaking  of  the  right  of  private 
citizens  to  make  war  upon  a  country  with  which  the  Government  of  the 
United  States  is  at  peace,  says:     ♦    *     * 

'"It  has  been  pretended,  indeed,  that  the  engagement  of  a  citizen  in 
an  enterprise  of  this  nature  was  a  divestment  of  the  character  of  citizen, 
and  a  transfer  of  jurisdiction  over  him  to  another  sovereign.  Our  citi- 
zens are  certainly  free  to  divest  themselves  of  that  character  by  emigra- 
tion, and  other  acts  manifesting  their  intention,  and  may  then  become 
the  subjects  of  another  power,  and  free  to  do  whatever  the  subjects  of 
that  power  may  do.  But  the  laws  do  not  admit  that  the  bare  commis- 
sion of  a  crime  amounts  of  itself  to  a  divestment  of  the  character  of 
citizen,  and  withdraws  the  criminal  from  their  coercion.  They  would 
never  prescribe  an  illegal  act  among  the  legal  modes  by  which  a  citizen 
might  disfranchise  himself,  nor  render  treason,  for  instance,  innocent, 
by  giving  it  the  force  of  a  dissolution  of  the  obligation  of  the  criminal 
to  his  country.' 

"This  is  in  accordance  with  the  opinion  of  the  circuit  court  of  the 
United  States  for  Pennsylvania,  by  whom  it  was  stated,  in  1793,  that 
'  if  one  citizen  of  the  United  States  may  take  part  in  the  present  war, 
ten  thousand  may.  If  they  may  take  part  on  one  side,  they  may  take 
part  on  the  other;  and  thus  thousands  of  our  fellow-citizens  may  asso- 
ciate themselves  with  the  different  belligerent  powers,  destroying  not 
only  those  with  whom  we  have  no  hostility,  but  destroying  each  other. 
In  such  a  case,  can  we  expect  peace  among  their  friends  who  stay  be- 
hind? And  will  not  a  civil  war,  with  all  its  lamentable  train  of  evils, 
be  the  natural  effect?'" 

Report,  above  cited,  of  Mr.  Webster,  Sec.  of  State,  to  tbo  President,  in  Thrasher's 
case,  Dec.  23, 1851.  6  Webster's  Works,  527.  See  sitpra,  ^  190, 198;  infra, 
H  229,  230,  244,  357. 

"It  may  be  remarked,  however,  that  in  France  and  on  the  conti- 
nent of  Europe  generally  the  police  authorities  have  the  right  and  are 
in  the  habit  of  setting  on  foot  proceedings  against  individuals  upon 
suspicion  merely,  and  not  upon  probable  cause  alleged  under  oath, 
504 


CHAP.  VII.]  ALIENS :    LOCAL   ALLEGIANCE.  [§  203. 

The  power  referred  to  is,  uo  doubt,  sometimes  abused.  Citizens  of  the 
United  States,  however,  whether  native  or  naturalized,  who,  of  their 
own  accord,  visit  countries  where  it  exists,  must  exi)ect  to  incur  that 
hazard,  unless  by  treaty  stipulations  they  should  be  placed  upon  a  more 
favorable  footing  than  the  subjects  of  the  Government  whose  agents  may 
commit  the  abuse.  We  have  no  treaty  with  France  which  provides  for 
such  an  exemption  in  favor  of  our  citizens." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Kicliter,  Feb.  21,  1854.  MSS.  Dom.  Let.  See 
to  same  effect  Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Osma,  Feb.  1,  1848. 
MSS.  Notes,  Peru. 

As  to  non-discrimination  in  sucb  cases  between  subjects  and  aliens,  see  infra, 
^  230,  244 ;  supra,  $$  189/. 

"  If  a  native-born  citizen  of  the  United  States  goes  into  a  foreign 
country  and  subjects  himself  to  a  prosecution  for  an  offense  against  the 
laws  of  that  country,  this  Government  cannot  interfere  with  the  pro- 
ceedings, nor  can  it  claim  any  right  to  revise  or  correct  the  error  of 
such  proceeding,  unless  there  has  been  a  willful  denial  of  justice,  or  the 
tribunals  have  been  corruptly  used  as  instruments  for  perpetrating 
wrong  or  outrage. 

"  This  Government  is  in  the  daily  iDractice  of  trying  and  punishing 
the  subjects  of  other  states  for  offenses  committed  here.  Those  states 
have  uo  right  nor  would  they  be  allowed  to  interfere  with  our  proceed- 
ings against  their  subjects,  upon  any  other  ground  than  a  willful  denial 
of  justice,  or  a  corrupt  perversion  of  judicial  proceedings  for  the  pur- 
pose of  wrong  or  oppression. 

"  Koszta,  it  will  be  recollected,  did  not  return  to  Austria  or  any  of  its 
dominions,  but  its  officers  attempted  to  seize  him  in  a  foreign  country 
without  any  right  to  do  so.  Had  Koszta  been  within  the  jurisdiction 
of  Austria  when  he  was  seized,  the  whole  character  of  the  case  would 
have  been  changed,  and  the  forcible  taking  of  him  from  the  legal  cus- 
tody of  Austrian  officers  could  not  have  been  defended  on  any  prin- 
ciple of  municipal  or  international  law. 

"  The  doctrine  laid  down  in  the  Koszta  case  is  regarded  by  this  Gov- 
ernment to  be  sound,  and  will  be  maintained  whenever  an  occasion  for 
asserting  it  shall  arise." 

Mr.  Marcy,  Sec.  of  State,  to  Baron  do  Kalb,  July  20, 1855.     MSS.  Dom.  Let. 
As  to  Koszta's  case,  see  supra,  $  198. 

A  de  facto  Government  is  entitled  to  local  allegiance. 

Mr. Cass,  Sec.  of  State,  to  Mr.  Clay,  Nov.  2G,  18.j8.     MSS.  Inst.,  Peru.     See  supra, 
$  7,  as  to  title  of  de  facto  Government. 

"  Every  independent  state  has  the  right  to  regulate  its  internal  con- 
cerns in  its  own  way,  taking  care  to  avoid  giving  just  cause  of  oflenso 
to  other  nations.  In  almost  all  the  European  states  there  are  police 
and  admini.strativo  powers  exercised  by  the  Governments,  which  en- 
able them  to  exert  a  very  arbitrary  authority  over  residents,  whether 


^  203.]    CITIZENSHIP,  NATUKALIZATlON,  AND  ALIENAGE.    [cilAP.  VII. 

natives  or  foreigners.  "NN'lien  onr  eitizens  enter  those  countries,  they 
enter  them  subject  to  the  operation  of  thohiws,  however  arbitrary  these 
niaj'  be,  and  responsible  for  any  violation  of  them.  Our  treaty  with 
Prussia  recognizes  this  obligation  and  provides  that  the  inhabitants  of 
each  of  the  said  countries  shall  be  at  liberty  to  reside  in  the  territories 
of  the  other  party,  and  shall  enjoy  the  same  security  and  protection  as 
natives,  'on  condition  of  their  submitting  to  the  laws  and  ordinances 
there  prevailing.'" 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Wright,  Dec.  10,  1858.     MSS.  Inst.,  Prussia. 

A  resident  alien,  who  has  not  renounced  his  native  allegiance,  is  not 
liable  for  military  service  ;  but  it  is  otherwise  if  ho  has,  by  exercising 
sufl'rage  under  State  law  or  otherwise,  renounced  such  allegiance,  even 
though  he  was  not  naturalized. 

Mr.  Seward,  See.  of  State,  (o  Mr,  Morton,  Sept.  5,  1862.  MSS.Dom.Let.  Seo 
infra,  "Ji^  230,24-1. 

"  I  have  further  to  state  that  military  commissions  and  courts-martial 
take  cognizance  of  and  try  comi)laints  against  all  classes  of  persons, 
citizens  of  the  United  States  as  well  as  foreigners,  without  any  dis- 
crimination on  the  ground  of  their  citizenship  or  want  of  citizenship, 
otherwise  than  such  discrimination  as  holds  citizens  to  full  obligations 
of  a  perfect  allegiance  to  the  United  States,  while  all  the  rights  which 
specially  belong  to  domiciled  or  transient  aliens,  as  such,  under  the  law 
of  nations,  are  observed  and  respected." 

Mr.  Seward,  Sec.  of  State,  to  Lord  Lyons,  Apr.  20, 1864.  MSS.  Notes,  Gr.  Brit. ; 
see  infra,  §§  230,  244. 

"Arrests,  of  strangers  especially,  on  mesne  process,  are  more  or  less 
oppressive  in  appearance;  but  if  they  are  sanctioned  by  the  local  law, 
it  must  be  presumed  that  they  are  deemed  necessary  for  the  ends  of  jus- 
tice, if  regularly  made.  If  they  are  made  for  malicious  purposes,  the 
law  usually  provides  a  remedy." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  Dec.  2, 1864.  MSS.  Inst.,  Venez.  See 
infra,  U  230,244. 

"  The  general  principle  is  supposed  to  be  clear  that  a  foreigner  who 
of  his  own  accord  settles  in  a  country,  accepts  the  condition  and  liabil- 
ities, in  peace  and  in  war,  of  a  native  of  that  country. 

"No  Government  can  be  expected  to  relinquish  its  right  of  jurisdic- 
tion over  all  such  persons  within  its  territory,  unless  that  relinquish- 
ment shall  have  been  made  by  special  compact,  such  as  the  treaties 
between  Christian  states  and  those  professing  the  Mohammedan  and 
other  religions. 

Mr.  Seward,  Sec,  of  State,  to  Mr,  Burton,  Sept,  27,  1866,  MSS,  Inst.,  Colombia, 
See  also  Mr.  Seward  to  Mr.  Crosby,  July  20,  1863.  MSS.  Inst,,  Cent.  Am. 
Mr,  Seward  to  Lord  Lyons,  May  30,  1862;  Feb.  7,  1863;  June  11,  1863. 
MSS.  Notes,  Gr.  Brit. 

50G 


CHAP.  VII.]  ALIENS:    LOCAL    ALLEGIANCE.  [§203. 

The  piobibitiou  by  the  French  Goveruuieut,  iu  1873,  of  a  course  of 
lectures  iu  Frauce  "on  the  advantages  held  out  by  a  part  of  the  United 
States  to  emigrants,"  while  "  one  of  those  acts  of  illiberality  which  it 
is  difficult  to  believe  would  have  been  exercised  by  a  professedly  re- 
publican government  in  this  age  of  the  world,"  cannot  be  alleged  to 
have  "  transcended  the  limit  of  power  to  which  an  independent  state, 
if  inclined  in  the  direction  of  the  exercise  of  extreme  powers  of  repres- 
sion, may  go  Avithout  giving  ground  for  remonstrance  on  the  part  of 
other  states  whose  citizens  may  thereby  be  prohibited  the  exercise  of 
free  speech,  or  the  opportunity  of  diflusing  information  tending  to  the 
possible  melioration  of  the  condition  of  large  numbers  of  people." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wasliburne,  Mar.  1,  1873.    MSS.  Inst.,  France. 

The  fact  that  a  resident  in  Chili  is  a  citizen  of  the  United  States, 
does  not,  where  there  is  no  treaty  stipulations  covering  his  case,  ex- 
empt him  from  service  iu  a  temporary  civic  guard  in  which  all  residents 
are  by  law  required  to  serve. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Williamson,  June  13,  187G.     MSS.  Inst.,  Chili. 

"That  the  fact  of  American  citizenship  could,  of  itself,  operate  to  ex- 
empt any  one  from  the  jienalties  of  a  law  which  he  had  violated,  is,  of 
course,  an  untenable  proposition.  Conversely,  however,  the  proposi- 
tion that  a  retroactive  law  suspending  at  will  the  simplest  operations 
of  justice,  could  be  applied  without  question  to  an  American  citizen,  is 
one  to  which  this  Government  would  not  give  anticipatory  assent." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lowell,  May  26,  1881.     MSS.  Inst.,  Gr.  Brit. 

"Every  person  who  voluntarily  brings  himself  within  the  jurisdiction 
of  the  country,  whether  permanently  or  temporarily,  is  subject  to  the 
operation  of  its  laws,  whether  he  be  a  citizen  or  a  mere  resident,  so 
long  as,  in  the  case  of  the  alien  resident,  no  treaty  stii)ulation  or  principle 
of  international  law  is  contravened." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  O'Connor,  Nov.  25, 1881.    MSS.  Dom.  Let.     See 
also  Mr.  Blaine,  Sec.  of  State,  to  Mr.  Piatte,  Dec.  6,  1881 ;  ibid. ;  supra,  $  7. 

"You  are  doubtless  perfectly  familiar  with  the  i)rinciples  of  law  gov- 
erning all  civilized  nations  which  subject  either  an  alien  or  a  citizen  to 
the  operation  of  the  laws  of  the  country  wherein  he  is  sojourning.  If  an 
alien,  while  within  tbe  United  States,  violates  a  law  here  in  force,  he  is 
liable  to  arrest  and  punishment  according  to  the  local  practice,  and  be- 
cau.se  of  his  foreign  citizenship  he  has  no  privileges  or  immunities  other 
than  those  enjoyed  by  a  citizen  of  this  Republic.  So  a  citizen  of  the 
United  States,  having  here  committed  an  ofiense  criminal  under  our 
.statutes,  is  subject,  whenever  he  shall  come  within  the  jurisdiction  of 
the  proper  court,  to  the  i)rescribed  penalty,  notwithstanding  any  after- 
acquired  citizenship  abroad." 

Mr.  Fn-lingliiiyson,  Sec.  of  State,  to  Mr.  O'Keilly,  Doc.  10,  1884.     MSS.  Dom. 
Let. 

507 


§  20o.J    ClTJZEN.SIl  1 J ',  NATUKALIZATION,  AND  ALIENAGE.    [cHAt^.  Vtl. 

It  is  -within  the  prerogative  of  each  sovereign  to  punish  political 
olienses  iu  his  country  b}-  aliens  whether  such  oflenses  are  seditious  or 
violent  acts  or  publicatio'us  inciting  thereto. 

Mr.  IJayard,  Sec.  of  State,  to  Mr.  Jacksou,  Aug.  5,  1885.  MSS.  Inst.,  Mex. 
See  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Carasco,  June  IG,  1885.  MSS.  Dora. 
Let. 

Aliens  domiciled  in  the  United  States  owe  to  the  Government  a  local 
and  temporary  allegiance,  which  continues  during  the  period  of  their 
residence,  and  for  the  violation  of  which  they  may  become  liable  to 
prosecution  for  treason,  just  as  a  citizen. 
Carlisle  v.  U.  S.,  16  Wall.,  147. 

Cotton  owned  by  a  British  subject,  although  he  never  came  to  this 
country,  was,  if  found  during  the  rebellion  within  the  Confederate  ter- 
ritory, a  legitimate  subject  of  capture  by  the  forces  of  the  United  States, 
and  the  title  thereto  was  transferred  to  the  Government  as  soon  as  the 
property  was  reduced  to  firm  possession. 

Young  r.  U.  S.,  97,  U.  S.,  39.     See  ivfra,  $$  224,228. 

A  resident  alien  owes  such  obedience  to  the  laws  of  the  country  in 
which  he  resides,  whether  municipal  or  military,  as  a  citizen.  Where 
one  resident  in  i!^ew  Orleans  transmits  money  across  the  lines  to  an 
agent,  to  buy  cotton,  no  valid  title  is  acquired, 

Qneyrouze's  case,  7  C.  Cls.,  402. 

Foreign  officers,  not  diplomatic  agents,  are  not  privileged  from  arrest 
or  suit  in  the  United  States. 

1  Op.,  49,  Bradford,  1794  ;  1  Op.,G8,  Lee,  1797. 

If  a  foreigner  have  a  defense  under  a  treaty,  he  must  plead  it,  like 
any  other  defense,  in  the  usual  course  of  judicial  proceedings,  and  un- 
til the  regular  course  of  such  proceedings  shall  have  failed  to  do  justice 
to  him  there  can  be  no  just  ground  of  complaint  to  the  President. 

1  Op.,  49,  Bradford,  1794;  infra,  U  230,  244. 

The  judicial  power  of  a  nation  extends  to  every  person  and  every 
thing  in  its  territory,  excepting  only  such  foreigners  as  enjoy  the  right 
of  extraterritoriality,  and  who,  consequently,  are  not  looked  upon  as 
temporary  subjects  of  the  state.  If  an  exemption  from  this  rule  is 
claimed  by  a  foreign  ship  of  war,  it  is  incumbent  upon  such  ship  to  set 
forth  and  maintain  clearly  and  satisfactorily  its  right  to  the  exemption. 
Otherwise  process  may  be  served  on  board. 
1  Op.,  87,  Lee,  1799 ;  see,  however,  stijyra,  $  3G. 

By  the  treaty  between  the  United  States  and  China,  citizens  of  the 
former  country  are  not  subject  to  the  laws  of  the  latter. 

7  Op.,  495,  Cusliing,  1855. 

As  to  undue  discrimination  against  aliens,  see  infra,  §^  230,  230a. 

As  to  privileges  of  extraterritoriality  in  Oriental  countries,  see  snpra,  $^  104, 125. 

508 


CHAP.  VII.]  ALIENS:    LOCAL    ALLEGIANCE.  [§203. 

The  rigLt  to  a  jury  de  mediatate,  allowed  in  England  to  aliens,  is  one 
to  be  determined  by  the  laws  there ;  and  if,  by  the  laws  of  England,  a 
native-born  subject  can  never  throw  off  his  allegiance,  it  is  not  a  viola- 
tion of  public  law  for  the  English  courts  to  refuse  this  right  to  such  a 
person,  though  he  has  been  naturalized  in  the  United  States. 

12  Op.,  319,  Stanbery,  1867. 

An  interesting  question  arises  when  a  foreigner  is  indicted  for  a  polit- 
ical ofiense  which  he  is  required  to  commit  by  his  own  sovereign.  In 
such  a  case  the  command  of  the  foreign  sovereign  is  no  defense.  If  the 
defendant,  in  such  a  prosecution,  is  convicted  in  violation  of  the  law 
of  nations,  it  is  the  duty  of  the  Executive  to  interfere  with  a  par- 
don. If  this  is  impracticable,  the  question  is  one  for  international  ad- 
justment. A  foreigner  cannot  say  that  he  is  not  bound  to  obey  the  laws 
of  the  state  where  he  is  sojourning.  But  if  the  act  for  which  he  is 
convicted  is  one  enjoined  by  his  own  sovereign,  then  that  sovereign 
must  be  held  responsible. 

Supra,  §1  21 ;  "Whart.  Com.  Am.  Law,  §  178.  See  Whart.  Coufl.  of  Laws,  $§  819, 
820;  Whart.  Crim.  Law  (8th  ed.),  ^  269,281,  chap.  i. ;  Holtzeudorff,  1215  ; 
Bonfils,  De  la  competence  des  tribunaus  franfais  h  regard  des  Estrangers, 
1865;  Ueber  die  Fehlerdes  Franz.  Civilrechtsbezuglich  der  Fremden. 

As  to  compulsion  by  de  facto  sovereign  as  a  defense,  see  Whart.  Crim.  Law  (8th 
ed.),  ^  94,  283,  310;  Ford  v.  Surget,  97  U.  S.,  594,  cited  in  Whart.  Com. 
Am.  Law,  $  210. 

As  to  conflictsof  criminal  jurisprudence,  see  Whart.  Com.  Am.  Law,  §$  350  _^. 

Sir  E.  Phillimore  (445),  differing  in  this  respect  from  Heffter  (§  58), 
holds  that,  "  as  a  general  proposition,  a  man  can  have  only  one  alle- 
giance." But  I  must  agree  with  Heffter  in  holding  that  a  mere  resi- 
dent in  a  state  owes,  for  the  time  being,  allegiance  to  such  state,  and 
may  be  guilty  of  treason  to  such  state  if,  as  a  private  person,  he  wages 
war  against  it,  or  renders  comfort  to  its  enemies.  Cobbett,  for  instance, 
when  in  the  United  States,  was  never  naturalized,  nor  did  he  ever 
restrain  himself  from  declaring  thnt  he  was  and  meant  to  continue 
to  be  a  British  subject ;  yet  no  one  would  have  pretended  that  Cob- 
bett, while  residing  in  the  United  States,  was  not  liable  to  be  indicted 
for  all  offenses,  political  or  otherwise,  made  indictable  in  the  place  of 
his  residence.  The  same  position  has  been,  as  we  have  seen,  taken  by 
the  British  Government  in  respect  to  citizens  of  the  United  States  who, 
when  residing  in  Ireland,  have  been  engaged  in  conspiracies  against 
the  British  Government.  The  question,  however,  may  be  merely  of  the 
meaning  of  words,  since  Sir  E.  Phillimore,  in  the  next  page  to  that 
from  which  the  above  passage  is  cited,  says :  "All  strangers  commorant 
in  a  land  owe  obedience,  as  subjects  for  the  time  being,  to  the  laws  of 
it."  That  the  home  sovereign  has  allegiance  due  him  from  such  per- 
sons is  maintained  by  all  civilized  states,  there  being  no  such  state 
which  does  not  maintain  its  right  to  levy  taxes  on  such  persons,  and 
to  hold  them  responsible  for  all  oifenses  committed  by  them  against  its 
sovereignty. 

Whart.  Crim.  Law  (8th  cd.),  $^  269 iT-,  281 ;  Phill.,  4r,5  ;  Van  Wycic,  Do  dclictis 

extra  rcgni  territ.  commiss.,  Utrecht,  1839. 
As  to  commercial  domicil,  soo  Wliart.  Com.  Am.  Law,  ^  219.    That  residence 

establishes  belligorfiit  cbarartcr,  koo  Johnson  r.  Falcoiirr,  2  Paiiio,  601  ;  S. 

C,  Van  N(!ss,  1. 

609 


§  203.]    CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

It  has  beeu  held  iu  England  that  where  a  foreigner  in  England  is 
guilty  of  a  breach  of  neutrality  in  conspiring  against  his  native  coun- 
try, the  1-^nglish  GovcrnnuMit  will  undertake  the  prosecution,  and  will 
not  leave  it  to  the  representatives  of  the  foreign  state.  (See  debate  in 
the  Jlouse  ot  Lords,  March,  I800.) 

In  1709  certain  English  subjects  were  prosecuted  for  publishing  a 
libel  upon  Paul  I,  Enijieror  of  Knssia.  They  were  convicted  and  ])un- 
ished  bj"  line  and  imprisonment. 

State  Trials  (Howell),  vol.  xxvii,  0'27-G;W.    Cited  Fields'  lut.  Law,  87. 

In  1803,  Jean  Peltier,  a  French  refugee,  was  prosecuted  tor  a  libel  on 
Napoleon  Ponaparte,  then  first  consul  of  the  French  Kepublic.  lie  was 
convicted,  but  no  judgment  was  entered  in  consequence  of  the  breaking 
out  of  war. 

state  Trials  (Howell),  vol.  xxviii,  530-GIlK  See  K.  r.  Most,  eited  in  WLart. 
Com.  Am.  Law.,  §  1:^8.     Wiiart.  dim.  Law,  ^  IT'J. 

"A  nation  has  a  right  to  harbor  political  refugees,  and  will  do  so, 
unless  weakness  of  political  sympathy  lead  it  to  a  contrary  course.  Put 
such  persons  may  not,  consistently  with  the  obligation  of  friendship  be- 
tween states,  bo  allowed  to  plot  against  the  person  of  the  sovereign,  or 
against  the  institutions  of  their  native  country.  Such  acts  are  crimes, 
for  the  trial  and  punishment  of  which  the  laws  of  the  land  ought  to 
l)rovide,  but  do  not  require  that  the  accused  be  remanded  for  ti  ial  to 
his  native  country." 

Woolsey,  §  79.  See  also  Wildmau's  Iiiteruational  Law,  59;  Law  LiW.,  vol.  Hi, 
4-2. 

"After  the  attemi)t  to  assassinate  the  Emperor  of  the  French,  on  the 
14th  of  January,  1858,  the  French  minister  of  foreign  affairs  represented 
that  jdots  to  assassinate  the  Emperor  had  been  formed  in  England,  and 
asked  that  England  should  provide  for  the  punishment  of  such  oflenses. 
In  accordance  with  the  request.  Lord  Palmerston,  being  prime  minis- 
ter, on  the  8th  of  February  introduced  a  bill  for  the  punishment  of  con- 
spiracies formed  in  England  to  commit  murder  beyond  Iler  Majesty's 
dominions;  but  the  bill  was  rejected,  and  the  ministry  immediately  re- 
signed. The  bill  was  opposed  by  some  from  an  unwillingness  to  inter- 
fere in  any  way  with  the  right  of  asylum ;  but  the  controlling  rea.sou 
evidently  was  a  feeling  that  the  French  Government  had  used  too  dic- 
tatorial a  tone  in  demanding  the  passage  of  such  a  law." 

Anuual  Register  (1858;,  5,33,  '202;  Anuuaire  des  deux  Moudes  (1857,1858),  32, 
110,  420,  cited  in  Lawrence's  Wheaton,  246,  note.  See  supra,  $  15;  AVbart. 
Crim.  Law,  9th  ed.,  ^^  220, 2)^7,  1397,  and  discussion  in  G  dim.  Law  Mag., 
155,  (March,  1885). 

"  The  same  application  Avas  made  to  Sardinia,  and  a  law  was  passed 
there  making  it  a  si)ccial  offense  to  conspire  against  the  lives  of  sover- 
eigns, although  the  punishment  originally  proi)Osed  in  the  bill  as  intro- 
duced by  the  ministers  was  nntigated  by  the  chandlers.  M.  Cavour 
sustained  the  measure,  both  on  political  grounds  and  because  he  deemed 
it  iniportant  that  Sardinia,  under  the  circumstances  in  which  she  was 
placed,  should  not  act  in  opposition  to  the  views  of  France," 

Annnaire  do  denx  Mondt-s  (18.'')7, 18."i8),  210. 

510 


CHAP.  VII.]  ALIENS:    TAXATION    OF.  ■  [§204. 

(4)  And  so  to  taxation. 

§204. 

"  In  the  absence  of  treaties,  citizens  of  the  United  States  who  have 
been  and  are  reuiainiug  domiciled  in  foreign  countries  could  (can)  not 
be  exempt  from  certain  common  obligations  of  citizens  of  those  coun- 
tries to  pay  taxes  and  perform  duties  imposed  for  the  preservation  of 
public  order  and  the  maintenance  of  the  Government."  But  this  may 
be  modified  by  treaty. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Asboth,  Mar.  27,  18(57.     MSS.  Insf.,  Arg.  Rep. 

"  It  may  be  acknowledged  that  usually  by  public  law  and  even  by 
treaties,  foreigners  are  not  allowed  greater  immunities  than  citizens. 
Treaties,  however,  in  some  instances,  for  reasons  best  known  to  the 
parties,  make  an  exception  to  the  general  rule.  It  has  bfeen  seen  that  the 
8th  article  of  the  treaty  of  1831  may  be  justly  construed  as  intendiug 
to  create  such  au  exception.  Insurgent  leaders  in  Mexico,  and  even  the 
authorities  of  the  Federal  Government,  may  demand  forced  loans  from 
Mexicans  without  any  intention  of  paying  either  priucipal  or  interest, 
but  when  this  demand  is  made  from  citizens  of  the  Uuited  States  com- 
pensation tberefor  may  be  expected,  pursuant  to  the  treaty.    *     *     * 

"When,  however,  money  is  wrested  by  threats  or  violence  from  a 
confiding  foreigner  by  an  insurgent  chieftain,  the  victim  cannot  be  ex- 
pected to  look  for  redress  to  the  ordinary  tribunals.  It  never  could 
have  been  the  intention  of  the  treaty  that  in  such  a  case  he  must  seek 
reparation  by  such  means.  If  so,  justice  and  indemnity  to  tlie  injured 
would  so  certainly  be  denied  that  the  recourse  to  diplomatic  interven- 
tion, which,  according  to  public  laws,  would  then  be  regular,  might  as 
well  be  adopted  at  once.  >^o  party  would  have  any  substantial  interest 
put  in  jeopardy  by  such  a  step. 

"It  is  true  that  Mr.  Webster,  in  his  note  to  Mr.  Calderon  on  the  sub- 
ject, denied  the  accountability  of  this  Government  to  the  private  indi- 
viduals who  suffered  losses  on  the  occasion  of  the  riot  at  New  Orleans, 
lie  does  not,  however,  assign  any  reason  for  this  opinion.  It  may  bo 
suppo.sed,  in  tlieir  absence,  that  he  was  aware  that  there  was  no  treaty 
between  the  United  States  and  Spain  containing  artich^s  similar  to  that 
between  the  United  States  and  Mexico;  and  furthermore,  that  instead 
of  being  aiL organized  rebellion,  lieaded  by  persons  of  distinction,  hav- 
ing for  its  object  the  overtlirow  of  existing  authority,  that  riot  wa.s  a 
mere  sudden  ebullition  of  comparatively  ob.scure  individuals  for  the 
l)urpo80  of  destroying  ])roperty  rather  than  tliat  of  extorting  money 
for  objects  of  rebellion. 

"It  may  be  conceded  ihat  by  the  public  law  foreigners  in  a  country 
in  a  state  of  insurrection  cannot  be  indemnified  for  all  losses  sustained 
from  in.snrgents  when  the  regular  (lovernmcnt  shall  have  been  restored. 
The  case  of  ;i  Iniccd  Idiin.  however,  is  believed  to  be  an  exception.     The 

511 


§  204.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

lueauing  of  the  word  loau  is,  that  the  money  borrowed  is  to  be  returned. 
If  the  borrower  is  a  sovereign,  his  obligation  to  repay  the  amount  is  .as 
saered  as  that  of  a  private  individual.  If  he  is  an  insurgent,  who  for 
a  time  usurps  the  regular  authority,  the  latter  may  justly  be  expected 
to  make  it  good  if  the  loan  was  an  involuntary  one." 

Mr.  CiulwiiLuler,  Actiug  Sec.  of  State,  to  Mr.  Foster,  Sept.  22,  1874.     MSS.  lust., 
Mcx.     Infra,  ^  223/. 

"As  a  general  rule,  the  power  to  impose  taxes  (the  question  here  being 
on  an  income  tax  levied  in  Germany  on  citizens  of  the  United  States 
there  resident)  is  an  attribute  of  sovereignty,  and  when  the  person  or 
the  property  in  question  is  a  proper  subject  of  taxation,  the  species  of 
tax  and  the  amount  which  should  be  collected  may  fairly  be  left  to  the 
state  or  Government  exercising  this  power." 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Davis,  Nov.  21,  1874.    MSS.  Inst.,  Prussia. 

"The  levying  of  a  tax,  however,  by  a  foreign  Government  upon 
property  within  itsjurisdiction,  whether  belonging  to  American  citizens 
or  not,  is  not  a  reason  for  the  interposition  of  this  Government  when 
the  tax  is  in  other  respects  properly  imposed." 

Mr.  Cadwalader,  Asst.  Sec.  of  State,  to  Mr.  Melizet,  Mar.  H!,  1875.     MSS.  Dom. 
Lot. 

"This  Government  has  not  demanded  for  its  citizens,  domiciled  and 
carrying  on  business  in  Cuba,  exemption  from  the  payment  of  their  or- 
dinary and  just  share  of  the  general  burdens  of  taxation,  which,  for 
proper  subjects,  and  within  iiroper  limits,  may  be  assessed  against  them, 
but  the  act  of  the  authorities  in  the  Island  of  Cuba,  in  forcibly  seizing 
property  of  citizens  of  the  United  States — in  compelling  private  citizens 
at  their  own  expense  to  erect  fortifications  on  their  property,  or  in  com- 
l)elling  the  payment  of  a  contribution  assessed  for  a  similar  purpose  by 
a  military  authority  or  by  some  self  constituted  committee, — if  correctly 
represented  to  this  Government,  partake  of  the  character  of  military 
exactions,  possible  only  in  a  state  of  war,  and  like  them  appear  to  have 
been  enforced  by  military  power,  without  recourse  to  the  usual  ma- 
chinery by  which  taxation  is  imposed  or  collected.  It  cannot,  I  think, 
be  doubted  that  such  arbitrary  acts  of  force,  which  compel  private  in- 
dividuals to  give  up  their  property  or  to  expend  such  money  and  labor 
for  the  Spanish  Government,  and  to  do  that  service  which  a  Govern- 
ment, in  general,  performs  at  the  public  expense,  can  in  no  respects  be 
called  taxation  and  cannot  be  justified  in  time  of  peace,  nor  will  it  be 
doubted  tiuit  if  enforced  they  will  give  rise  to  a  valid  claim  for  compen- 
sation and  indemnity." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Mantilla  Jan.  11.  1876.     MSS.  Notes,  Spain. 

"Foreigners  who  have  chosen  to  take  up  their  residence,  to  purchase 
property,  or  to  carry  on  business  in  a  foreign  country,  thereby  place 
512 


CHAr.  VII.]  ALIENS:    TAXATION    OF.  [§204. 

themselves  under  the  jurisdiction  of  the  laws  of  tbat  country,  and  may 
fairly  be  called  upou  to  bear  tlieir  fair  share  of  the  general  public  bur- 
dens, when  i^roperly  imposed  upon  them  and  other  members  of  the 
community  alike.  As  a  general  proposition,  the  right  to  tax  includes 
the  power  to  determine  the  amount  which  must  be  levied,  and  the  ob- 
jects for  which  that  amount  shall  be  expended.  These  powers  are  pow- 
ers incident  to  sovereignty,  the  exercise  of  which,  unless  abused,  can- 
not, in  general  be  made  the  subject  of  diplomatic  remonstrance." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Gushing,  Jan.  12,  1876.    MSS.  Inst.,  Spain. 

"  While  it  is  difficult  to  protest  against  the  exaction  of  such  taxes 
(those  on  aliens  in  Cuba)  upon  well-defined  principles,  the  fact  seems 
to  be  apparent  that  many  of  the  taxes  exacted  are  loosely  if  not  un- 
fairly assessed,  excessive  in  their  amount,  and  not  infrequently  fail  to 
be  in  any  way  applied  for  the  purpose  for  which  they  are  raised." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Adee,  Dec.  21,  1876.    MSS.  Inst.,  Spain.     See  Mr. 
Evarts,  Sec.  of  State,  to  Mr.  Adee,  Apr.  20,  1879 ;  ibid. 

"  Yonr  dispatch  Ko.  1076,  of  the  24th  of  December  last,  has  been  re- 
ceived. It  relates  to  a  forced  loan  recently  exacted  from  Messrs.  Mac- 
manus  &  Sons  at  Chihuahua,  of  which  firm  Mr.  Scott,  the  consul,  is 
a  member.  The  exaction  is  believed  to  have  been  contrary  to  public 
law,  and  in  this  case,  as  the  officer  pursuant  to  whose  orders  it  was 
carried  into  effect  was  in  the  service  of  the  Mexican  Government  for 
the  time  being,  it  is  expected  that  that  Government  will  duly  reimburse 
the  victims.  - 

"This  may  be  particularly  claimed  on  behalf  of  the  consul,  who  is 
especially  exempted  from  such  charges  by  the  twenty-ninth  article  of 
the  treaty  of  1831.  It  is  true  that  it  does  not  appear  that  Mr.  Scott 
was  required  to  pay  anything  except  as  a  partner  in  the  firm  adverted 
to,  and  that  it  may  not  have  been  easy  at  the  time  to  ascertain  the  ex- 
tent of  his  interest  in  that  firm,  even  if  there  has  been  a  disposition  to 
limit  the  exaction  accordingly. 

"  It  appears  that  the  consular  office  was  made  a  place  of  deposit,  not 
only  for  the  available  funds  of  Macmanus  &  Sons,  but  of  other  Ameri- 
can citizens  engaged  in  business  in  Chihuahua.  When  payment  was 
first  demanded  of  Mr.  Scott  he  refused  it,  and  closed  the  doors  of  his 
office  against  the  officer  who  made  the  demand.  The  latter  soon  after- 
wards reappeared  with  an  additional  force,  when  Mr.  Scott  concluded 
that  further  resistance  was  useless,  and  opened  his  doors  accordingly^, 
when  the  officer  obtained  the  sum  required. 

"  Even  supposing  that  the  consul  had  been  engaged  in  no  other  busi- 
ness than  that  of  an  official  character,  there  is  nothing  iti  the  treaty 
which  guarantees  to  his  itlace  of  business  freedom  from  search.  There 
is  a  distinct  guarantee  of  (he  archives  and  papers  of  the  consulate, 
but  it  is  not  alleged  that  the.se  were  disturbed. 

S.  Mis.  IGi'— vor..  ir Xi  ^^^ 


§  204.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CHAP.  VII. 

"  Pursuant  to  the  tbirty-first  article  of  the  treaty,  tbe  parties  agreed 
to  euter  iuto  a  special  convention  for  defining  the  powers  and  immuni- 
ties of  consular  ofQcers. 

"  Several  attempts  have  been  made  for  this  purpose,  but  all  have 
hitherto  jiroved  abortive.  If  any  such  convention  should  go  into  efi'ect 
it  might  be  expected,  like  others,  to  contain  an  article  specially  ex- 
empting the  offices  of  consuls  from  being  entered  by  the  authorities  of 
the  country.  At  present  no  such  exemption  can  be  claimed  by  us  as 
a  matter  of  right  in  Mexico,  especiallj^  in  cases  where  a  consular  officer 
is  a  member  of  a  mercantile  firm  and  his  place  of  business  is  the  same 
as  that  of  the  lirm." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  Fob.  20,  1880.     MSS.  Inst.,  Mcx. ;  For. 

Eel.,  1880.     See  sujyra,  ^  58. 
As  to  Cuban  taxes,  see  further  Sir.  Evarts,  Sec.  of  State,  to  Mr.  Fairchild,  May 
1,18:30.     MSS.  lust.,  Spain. 

This  Government  will  regard  the  imposition  in  Cuba  of  taxes  or 
charges  discriminating  against  colored  citizens  of  the  United  States  on 
the  ground  of  their  color  as  the  subject  of  international  complaint. 

Mr.  Freliughnysen,  Sec.  of  State,  to  Mr.  Hamlin,  June  19,  1882.  MSS.  Inst., 
Spain.  See  also  Mr.  Frelingliuyseu,  Sec.  of  State,  to  Mr.  Foster,  Dec. 
19, 1883.     Jhid. 

"Taxation  may  no  doubt  be  imposed,  in  conformity  with  the  law  of 
nations,  by  a  sovereign  on  the  proi^crty  within  his  jurisdiction  of  a  per- 
son who  is  domiciled  in  and  owes  allegiance  to  a  foreign  country.  It  is 
otherwise,  however,  as  to  a  tax  imi)osed,  not  on  such  property,  but  on 
the  person  of  the  party  taxed  when  elsewhere  domiciled  and  elsewhere 
a  citizen.  Such  a  decree  is  internationally  void,  and  an  attempt  to  exe- 
cute it  by  penalties  on  the  relatives  of  the  party  taxed  gives  the  person 
as  taxed  a  right  to  ai)peal  for  diplomatic  intervention  to  the  Govern- 
ment to  which  he  owes  allegiance.  To  sustain  such  a  claim  it  is  not 
necessary  that  the  penalties  should  have  been  imposed  originally  and 
expressly  on  the  person  so  excepted  from  jurisdiction.  It  is  enough 
if  it  appears  that  the  tax  was  levied  in  such  a  way  as  to  reach  him 
through  his  relatives." 

Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Emmet,  June  8,  1883.  MSS.  Inst., 
Turkey;  For.  Eel.,  1885. 

"Your  Xo.  31,  of  the  17th  ultimo,  relative  to  a  dispatch  of  our  con- 
sular agent  at  Mytilene,  transmitting  to  our  consul  at  Smyrna  the  pro- 
test of  foreigners  in  Mytilene  against  a  decree  of  the  governor  of  that 
island  levying  a  tax  on  foreigners  for  the  local  public  schools,  is  re- 
ceived. 

"  As  Mr.  Fottion's  dispatch  is  not  among  your  iuclosures,  it  can  only 

be  inferred  from  INIr.  Stevens's  dispatch  of  the  5th  ultimo,  Mr.  Heap's 

of  the  14th  ultimo  (which  you  inclose),  and  your  note  to  the  imperial 

minister  for  foreign  affairs,  that  there  is  no  protest  against  this  school 

514 


CHAP.  VII.]  ALIENS:    TAXATION    OF.  [S^  205. 

tax  ou  the  part  of  American  residents  in  Mytilene,  as  Mr.  Heap  says  he 
lias  no  information  that  any  Americans  own  real  estate  there,  but  that 
Mr.  Fottion's  appeal  to  the  consul  is  a  general  one  in  the  interests  of 
foreign  residents  on  account  of  two  school  taxes  ordered,  respectively, 
by  the  central  and  by  the  communal  or  municipal  governments.  If  this 
is  so  it  would  go  to  prove  that  there  was  no  discrimination  shown 
against  American  residents,  even  supposing,  as  does  not  appear  from 
the  correspondence,  that  they  would,  not  owning  real  estate  there,  be 
taxed  at  all,  unless  this  is  an  income  tax,  which  is  not  stated. 

'^  On  general  principles  it  is  safer  not  to  protest  against  local  ordi- 
nances until  at  any  rate  the  rights  of  American  citizens  appear  to  be 
specifically  invaded,  so  as  to  cause  complaints  from  them ;  and  for  the 
views  of  this  Department  on  the  general  subject  of  the  taxation  of  our 
citizens  abroad  I  would  refer  you  to  the  Hon.  Hamilton  Fish's  instruc- 
tion, Xo.  29,  of  the  21st  of  November,  1874.  to  our  minister  at  Berlin. 
The  ground  is  there  taken  that  as  long  as  a  tax  is  uniform  in  its  opera- 
tion, and  can  fairly  be  considered  a  tax  and  not  a  confiscation  or  unfair 
imposition,  no  successful  representation  can  be  made  to  a  foreign  Govern- 
ment on  behalf  of  the  parties  complaining,  and  that  complaints  of  ex- 
cessive taxation  are  more  properly  questions  for  submission  to  local 
courts. 

"  The  fact  that  imrt  of  the  tax  goes  to  local  and  part  to  Imperial 
schools  would  seem  to  afford  no  additional  ground  for  objection. 

"A  Government  has  a  perfect  right  to  say,  'We  will  establish  and 
raise  taxes  for  certain  central  universities,  which  are  for  the  benefit  of 
the  whole  land,  while  local  and  primary  schools  are  to  be  established 
and  taxed  for  by  municipalities.'  This  in  analogous  matters  is  the  con- 
stant practice  in  the  United  States." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cos,  Nov.  11,  1885.     MSS.  lust.,  Turkey;  For. 
Eel.,  1885. 

A  law  of  the  State  of  Louisiana  imposing  a  tax  on  legacies  payable 
to  aliens  is  not  repugnant  to  the  Constitution  of  the  United  States. 
Every  state  or  nation  may  refuse  to  allow  an  alien  either  real  or  per- 
sonal property,  situated  within  its  limits,  either  as  heir  or  legatee,  and 
ma3',  if  it  thinks  proper,  direct  that  property  so  descending  or  be- 
queathed shall  belong  to  the  state. 

Mager  v.  Griina,  8  How.,  490.     See  as  to  discrimiuatiou  agaiust  aliens,  infra, 
$230. 

(5)   WlIlCX   LOCAL   on   I'KUSOXAL   SOVKRKIGN    LIAIJLK   FOK. 

§  205. 

Un  tlio  principle  of  territorial  sovereignty,  above  stated  {fiupra,  §§  1, 
7),  a  local  sovereign  may  be  liable  to  foreign  sovereigns  for  sucli  dam- 
ages done  to  them  by  aliens  on  his  shores  as  lie  could  liav<>  picvcntiMl. 

Infra,  U  223,  227. 

515 


§  206.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [OHAP.  VII. 

"The  authority  which  every  sovereign  has  over  the  conduct  of  aliens 
within  his  territorial  jurisdiction,  makes  him  responsible  to  others  for 
their  conduct,  as  much  and  for  the  same  reason,  as  he  is  responsible  for 
the  conduct  of  permanent  citizens  or  subjects." 

Mr.  Madison,  Sec.  of  State,  to  Mr.  C.  Pinclcnoy,  Oct.  25,  1802;  same  to  same, 
Feb.  6,  1804.  MSS.  lust.,  Ministers.  Mr.  Madison  to  Mr.  Monroe,  Oct.  26, 
1804.     Ibid.     See  infra,  $  398. 

A  sovereign  Avho  directs  a  subject  to  enter  a  foreign  state  and  there  in- 
flict injuries  is  liable  to  such  foreign  state  for  the  injuries.  But  there 
is  no  liabilty  for  offenses  not  so  directed. 

Supra,  $  21;  infra,  §$  228,  318. 

"While  the  Government  will  always  regret  that  any  citizens  of  the 
United  States  abroad  should  misbehave,  and  especially  be  charged  with 
crime,  the  Government  to  which  they  owe  allegiance  is  not  held  legally 
accountable  therefor.  The  aggressors,  however,  may  be  prosecuted  for 
damages  in  the  courts,  and  made  answerable  to  the  extent  of  their 
means." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Mariscal,  Jan.  3, 1874.  MSS.  Notes,  Mexico.  See 
supra,  5  21. 

An  invasion  of  a  custom-house  in  Texas  by  citizens  of  Arkansas,  and 
the  violent  abstraction  therefrom  of  property,  under  a  claim  of  title, 
constitute  no  ground  of  claim  against  the  United  States. 
4  Op.,  332,  Nelson,  1844. 

This  Government  is  not  responsible  for  the  acts  of  private  trespassers ; 
they  must  be  punished  in  the  tribunals  established  by  law,  or  be  pros- 
ecuted for  the  recovery  or  value  of  the  goods,  either  in  the  State  or 
Federal  courts. 

Ilid. 

(G)  May  bk  expelled  or  rejected  by  local  sovereigx. 

§206. 

"  This  Government  could  never  give  uj)  the  right  of  excluding  for- 
eigners whose  i)resence  they  might  deem  a  source  of  danger  to  the 
United  States." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Mauu,  Dec.  13,  1852.     MSS.  Dom,  Let. 

Kor  will  this  Government  consider  such  exclusion  of  American  citi- 
zens from  Kussia  necessarily  a  matter  of  diplomatic  complaint  to  that 
country. 
Hid. 

"  Every  society  possesses  the  undoubted  right  to  determine  who  sliall 
compose  its  menibers,  and  it  is  exercised  by  all  nations  both  in  peace 
and  war.     A  memorable  example  of  the  exercise  of  this  power  in  time 
51G 


CiTAr.  VIT.J  ALIENS:    EXPULSION    0I\  [§  20(). 

of  peace  was  the  passage  of  the  alien  law  of  tlie  Uuited  States  in  the  year 
1798." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Fay,  Mar.  22,  1850.     MSS.  lust  ,  Switz. 

"  It  may  always  be  questionable  wlietber  a  resort  to  tbis  power  is 
warranted  by  tbe  circumstances,  or  wbat  deiiartment  of  the  Govern- 
ment is  emx^owered  to  exert  \t;  but  there  can  be  no  doubt  tbat  it  is 
possessed  by  all  nations,  and  that  each  may  decide  for  itself  when  the 
occasion  arises  demanding  its  exercise." 
Ibid. 

"  Even  where  a  Government  is  not  restricted  by  treaty  engagements 
it  is  still  a  harsh  measure  to  exclude  the  naturalized  emigrant  from  his 
native  country,  or  to  subject  him  to  penalties  in  the  event  of  his  return, 
even  for  a  brief  period,  or  when  yielding  to  imperative  circumstances. 
Business,  anxiety  to  see  near  and  valued  relatives,  a  natural  desire  to 
visit  the  laud  of  their  birth — these  and  other  motives,  laudable  in  them 
selves,  may  well  induce  this  class  of  our  citizens  to  return  to  their  na- 
tive countries.  It  is  difficult  to  perceive  what  rational  objection  can 
exist  to  the  gratification  of  such  feelings.  Surely  no  danger  can  be  ap- 
prehended to  the  public  peace,  for  the  Governments  possess  ample 
power  for  its  preservation,  even  if  there  were  a  disposition,  a  very  im- 
probable supposition  on  the  part  of  these  few  individuals,  to  disturb  the 
tranquillity  of  the  countr3\  These  remarks  are  not  made  in  defense  of 
the  right  of  naturalized  citizens  of  the  United  States,  natives  of  Prussia, 
to  revisit  or  reside  in  that  country.  That  right  is  secured  b^'  treaty, 
but  this  Government  relies  upon  the  justice  and  friendship  of  that 
of  Prussia  not  to  i^ermit  any  unfavorable  impression  respecting  these 
returned  naturalized  citizens  to  work  them  injury." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Wright,  Dec.  10,  1858.     MSS.  Inst.,  Prussia. 

"  The  Federal  Constitution  authorized  Congress  to  prescribe  uniform 
rules  of  naturalization  and  Congress  heretofore  prescribed  the  condi- 
tions of  five  years'  residence,  a  preliminary  declaration  of  intention  to 
become  a  citizen,  and  a  subsequent  oath  of  renunciation  of  the  native 
allegiance  and  acceptance  of  the  new  one. 

''  But  on  another  hand  the  Federal  Constitution  recognizes  a  citizen- 
ship of  each  State,  and  declares  that  the  citizens  of  one  State  shall  en- 
joy the  right  of  citizenship  in  every  other  State,  and  leaves  it  to  each 
State  to  prescribe  the  conditions  of  its  own  proper  citizenship.  By  the 
constitutions  of  several  of  the  States,  especially  the  new  ones,  the  pre- 
liminary declaration  of  intention  above-mentioned  entitles  the  maker 
of  it  to  all  the  rights  of  citizenship  in  that  State,  and  they  freely  enjoy 
and  exerci.se  those  rights.  They  enjoy  ample  protection  and  exercise 
Kuflrage.  It  was  witli  reference  to  this  state  of  facts  that  Congress 
passed  the  law  which  is  recited  in  the  President's  proclamation  j  and 
they  passed  another  act  which  authorizes  the  Secretary  of  State  to  ex- 

517 


§  2()G.]     OTTIZEKSTITP,  NATURALIZATION,  AND  ALIENAGE.    [CTIAP.  VJL 

tend  the  ])iotcctioii  oT  the  (Joveriiiiieiit  to  all  persons  who  by  any  laws 
of  the  Uuitecl  States  are  bound  to  render  military  service.  The  two 
laws  seem  to  this  Government  to  be  reasonable  and  just,  and  they  con- 
stitute a  new,  additional,  and  uniform  law  of  Federal  naturalization. 
But  it  was  foreseen  that  some  immigrants  who  had  declared  their  in- 
tentions might  complain  of  surprise  if  they  were  immediately  subjected 
to  conscription.  To  guard  against  this  surprise  the  ])rocla!nation  was 
issued,  giving  them  ample  notice  of  the  change  of  the  law,  with  the 
alternative  of  removal  from  the  country,  if  they  should  prefer  removal 
to  remaining  here  on  the  footing  on  which  Congress  had  brought  them. 
Surely  no  foreigner  has  a  right  to  be  naturalized  and  remain  here  in  a 
time  of  public  danger  and  enjoy  the  protection  of  a  Government  with- 
out submitting  to  general  requirements  needful  for  his  own  security. 
The  law  is  constitutional,  and  the  persons  subjected  to  it  are  no  longer 
foreigners  but  citizens  of  the  United  States.  The  law  has  been  acqui- 
esced in  by  all  foreign  powers,  and  I  am  sure  that  Switzerland  cannot 
be  disposed  to  stand  alone  in  her  protest  against  it." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  July  20, 18G3.     MSS.  Inst..  France. 
As  to  compulsory  military  service  by  aliens,  see  supra,  ^  202. 

In  18CG  the  Russian  ministry  gave  notice  to  Mr.  C.  M.  Clay,  minister 
of  the  United  States  at  St.  Petersburg,  that  S.  P.,  "a  native  of  Russia- 
Poland,  and  a  naturalized  citizen  of  the  United  States,  had  been  proved 
to  have  become  such  citizen  without  leave  of  the  Emperor  of  Russia,  and 
that  in  conformity  with  article  307  of  the  penal  code  he  has  been  de- 
prived of  all  the  rights  of  Russian  citizenship,  and  banished  forever 
from  the  Russian  Empire,  and  that  this  sentence  has  been  put  into  ex- 
ecution." x.Ir.  Clay,  in  advising  Mr.  Seward  of  this  action,  said  that  he 
did  "not  see  that  we  can  make  it  a  cause  of  complaint,  insomuch  as  it 
settles  the  debatable  question  of  naturalization  in  our  favor,"  and  avoids 
unpleasant  issues.  Mr.  Seward  acquiesced  in  this,  saying  "provided 
that  Mr.  P.  does  not  feel  himself  aggrieved."  He  added,  however,  "that 
the  case  may,  perhaps,  demand  careful  examination  if  it  shall  turn  out 
that  the  decree  of  perpetual  exclusion  thus  pronounced"  was  based 
solely  on  P.  having  become  naturalized  in  the  United  States. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Clay,  Aug.  24,  1866.    MSS.  Inst.,  Russia. 
On  the  same  topic  see  Mr.  Seward  to  Mr.  C.  M.  Clay,  Jan.  7,  1869.     MSS.  Inst., 
Russia.     See  supra,  §§  159,  172a. 

"The  control  of  the  people  within  its  limits,  and  the  right  to  expel 
from  its  territorj-  persons  who  are  dangerous  to  the  peace  of  the  State, 
are  too  clearly  within  the  essential  attributes  of  sovereignty  fo  be 
seriously  contested. 

"Strangers  visiting  or  sojourning  in  a  foreign  country  voluntarily 

submit  themselves  to  its  laws  and  customs,  and  the  municipal  laws  of 

Erance,  authorizing  the  expulsion  of  strangers,  is  not  of  such  recent 

date,  nor  has  the  exercise  of  the  power,  by  the  Government  of  France, 

518 


CHAP.  VII.J  ALIENS:    EXPULSION    OF.  [§206. 

beeu  so  iufrequeut,  that  sojourners  witbiu  her  territory  can  claim  sur- 
prise wlien  the  power  is  put  in  force." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Wasliburue,  Sept.  17,  1869.    MSS.  Inst.,  France. 

The  Government  of  the  United  States  "is  not  willing  and  will  not 
consent  to  receive  the  i^auper  class  of  any  community  who  may  be  sent 
or  may  be  assisted  in  their  immigration  at  the  expense  of  Government 
or  of  municipal  authorities." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Moulding,  Dec.  26,  1872.    MSS.  Dom.  Let. 

The  ijower  of  expelling  obnoxious  foreigners  is  one  incident  to 
sovereignty. 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Foster,  Oct.  17,  1873.  MSS.  Inst.,  Mex. 

"The  admission  that  as  that  [the  Mexican]  constitution  now  stands 
and  is  interpreted,  foreigners  who  render  themselves  harmful  or  ob- 
jectionable to  the  General  Government  must  expect  to  be  liable  to  the 
exercise  of  the  power  adverted  to,  even  in  time  of  peace,  remains,  and 
no  good  reason  is  seen  for  departing  from  that  conclusion  now. 

"  But,  while  there  may  be  no  expedient  basis  on  which  to  found  ob- 
jection, on  principle  and  in  advance  of  a  special  case  thereunder,  to  the 
constitutional  right  thus  asserted  by  Mexico,  yet  the  manner  of  carry- 
ing out  such  asserted  right  may  be  highly  objectionable.  You  would 
be  fully  justified  in  making  earnest  remonstrance  should  a  citizen  of 
the  United  States  be  expelled  from  Mexican  territory  without  just  steps 
to  assure  the  grounds  of  such  expulsion,  and  in  bringing  the  fact  to  the 
immediate  knowledge  of  the  Department. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Foster,  July  10,  1879.     MSS.  Inst.,  MeS. 

The  increase  of  Mormon  emigration  to  the  United  States  from  Aus- 
tria is  an  evil  to  which  the  attention  of  the  Austrian  Government  may 
properly  be  turned,  asking  such  measures  of  repressing  such  emigration 
as  may  be  practicable. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Kasson,  Aug.  9,1879.     MSS.  Inst.,  Austria. 

The  Austrian  Government  subsequently  took  steps  to  check  such 
emigration. 

Mr.  Frelingbuyseu,  Sec,  of  State,  to  Mr.  Taft,  July  28,  1884.  Mr.  Frclingliuy- 
sen,  Sec.  of  State,  to  Mr.  Francis,  Aug.  7, 1884.  MSS.  Inst.,  Austria.  As  to 
passports  to  Mormons,  see  svpra,  $$  191  ff. 

"  In  the  discussion  of  the  points  presented  by  the  expulsion  of  certain 
American  citizens  from  the  Russian  capital,  on  no  charge  or  suspicion 
of  misdoing,  but  on  the  naked  allegation  of  being  Hebrews,  I  remark 
that  the  Kussian  Government  api)roaclies  the  issue  within  the  narrow- 
est and  most  rigid  limits  of  interpretation  of  which  the  treaty  stipula- 
tions between  tlie  two  countries  are  susceptible,  and  with  no  apparent 
disposition  to  concede  as  a  rule  to  American  citizens  in  Bussia  the  same 

619 


§  20G.]     CITIZENSHIP,  NATURALIZATION,  AND  ALIENAGE.     [CIIAP.  Vll. 

treatmeut,  irrespective  of  their  belief,  to  wliich  .some  other  nationalities 
are  entitled." 

Sir.  Blaiue,   Sec.  of  State,  to  »Ir.  Pavtliolomei,  Jiuio  20,  1881.    MSS.  Notos, 
Kussia. 

"  While,  under  the  Constitution  and  the  laws,  this  country  is  open  to 
the  honest  and  industrious  immigrant,  it  has  no  room  outside  of  its 
prisons  or  almshouses  for  depraved  and  incorrigible  criminals  or  hope- 
lessly dependent  iDaupers,  who  may  have  become  a  pest  or  a  burden,  or 
both,  to  their  own  country;  and  the  sending  of  such  persons  to  our 
shores  by  the  public  authorities  of  Switzerland,  either  local  or  supreme, 
cannot  be  looked  upon  otherwise  by  this  Government  than  as  a  viola- 
tion of  our  national  hospitality  and  a  disregard  of  the  spirit  of  comity 
and  good  neighborhood,  which  it  is  so  desirable  to  foster  and  cherish  be- 
tween two  nations  bound  so  closely  by  the  ties  of  long  and  unbroken 
friendship  and  kindred  institutions,  as  are  the  United  States  and  the 
Swiss  Eepublic." 

Mr,  Blaiue,  Sec.  of  State,  to  Mr.  Cramer,  Dec.  3,  1881.     MSS.  lust.,  Switz. 

This  Government  cannot  contest  the  right  of  foreign  Governments 
to  exclude,  on  police  or  other  grounds,  American  citizens  from  their 
shores. 

Mr.  Frclinglinyscn,  Sec.  of  State,  to  Mr.  Stillman,  Aug.  3, 1882.    MSS.  Dom.  Let. 

♦'Although  by  virtue  of  section  4  of  the  act  of  August  7, 1882,  the 
Secretary  of  the  Treasury  may  call  upon  State  boards  of  charities  to 
execute  the  provisions  of  that  section,  there  is  no  power  possessed  by 
him  to  constrain  these  boards  to  act,  or  to  return  convicts  to  '  the  nation 
to  which  they  belong,'  except  in  the  vessel  in  which  they  have  come, 
and  from  a  port  in  their  own  state." 

Mr.  Frclingliuysen,  Sec.  of  State,  to  Mr.  Noguciras,  Mar.  20,  1883.    MSS.  Notes, 
Portugal. 

"  The  policy  of  assisted  emigration  is  likely  to  send  to  us  many  who, 
lacking  the  qualities  to  secure  a  passage  to  America  for  themselves,  and 
depending  upon  Government  aid  for  this,  i)resumably  do  not  possess 
the  qualities  to  successfully  cope  with  the  adverse  circumstances  which 
must  necessarily  attend  their  first  etforts  in  a  strange  country,  and  it  is 
in  this  natural  tendency  of  such  a  policy  that  we  find  a  legitimate  reason 
for  objection  to  its  enforcement  by  Great  Britain.  Honest,  industrious, 
and  frugal  immigrants  will  always  be  gladly  received  here,  but  this 
Government  cannot  look  without  deep  concern  upon  any  action  by  a 
foreign  Government  which  tends  to  unloading  its  paupers,  its  'ne'er- 
do-wells,'  its  aged  and  infirm,  its  cripples  and  weak-minded  upon  us, 
that  we  may  afford  that  support  through  taxation  which  their  native 
country  owes  them, 

"  It  is  quite  evident  how  the  assisted  emigration  of  such  thriftless  and 
dependent  classes  may  at  once  relieve  the  burdens  of  the  home  commu- 
620 


CIIAr.  VII.'J  ALIENS:    EXPULSION    OF.  [§20(5. 

nity  aud  eutail  correspoudiii^  burdens  ou  a  foreigu  commuuity  to  an 
extent  to  justify  international  remonstrance.  It  is  equally  clear  that 
the  expedient  of  assisting  emigration  by  Government  aitl  is  one  only  to 
be  resorted  to  under  circumstances  which  shall  produce  the  greatest  good 
to  all  alike,  analogous,  for  instance,  to  an  enlightened  scheme  of  coloni- 
zation. The  object  in  view  should  rationally  be  not  mere  deportation 
of  unproductive  elements,  but  to  ofier  to  those  whose  home  productive- 
ness is  impeded  the  advantages  of  a  fresh  start  in  life  under  more  au- 
spicious surroundings,  such  as  the  Great  West  supplies,  whether  in  Can- 
ada or  the  United  States.  To  such  emigration  as  comes  to  its  shores, 
willing,  and  within  proper  limits,  able  to  join  in  the  general  work  of 
production  and  self-sustenance,  neither  a  fruitful  dependency  of  the 
home  state  nor  a  friendly  foreign  state  can  rightly  object." 

Mr.  J.  Davis,  Aast.  Sec.  of  State,  to  Mr.  Lowell,  May  25,  1883.     MSS.  lust.  Gr. 
Brit. ;  For.  Eel.,  1883. 

"  Question  has  arisen  touching  the  deportation  to  the  United  States 
from  the  British  Islands,  by  governmental  or  municipal  aid,  of  persons 
unable  there  to  gain  a  living  and  equally  a  burden  on  the  community 
here.  Such  of  these  persons  as  fall  under  the  pauper  class  as  defined 
by  law  have  been  sent  back  in  accordance  with  the  provisions  of  our 
statutes.  Her  Majesty's  Government  has  insisted  that  precautions  have 
been  taken  before  shipment  to  prevent  these  objectionable  visitors  from 
coming  hither  without  guarantee  of  support  by  their  relatives  in  this 
country.  The  action  of  the  British  authorities  in  applying  measures  for 
relief  has,  however,  in  so  many  cases  proved  ineffectual,  and  especially 
so  in  certain  recent  instances  of  needy  emigrants  reaching  our  territory 
through  Canada,  that  a  revision  of  our  legislation  upon  this  subject  may 
be  deemed  advisable." 

President  Artliur,  Third  Annual  Message,  1883.     See   also  President  Arthur, 
First  Annual  Message,  1881. 

"In  the  first  place,  the  term  'convicts'  covers  all  persons  convicted, 
by  due  process  of  law,  of  any  offense  whatever  not  being  a  political 
offense.  This  would  include  many  offenses  not  specified  in  any  extra- 
dition treaty  of  the  United  States,  and  might  give  rise  to  inquiries  ou 
the  part  of  auy  Government,  whether  having  a  treaty  with  us  or  not, 
or  even  positive  demands  for  surrender  with  submission  of  legal  proof 
of  conviction,  which,  as  the  law  stands,  it  might  be  difficult  to  decline 
compliance  with.  The  idea  of  surrender  of  convicts,  it  seems  to  me, 
should  be  excluded,  leaving  it  the  clear  intent  of  the  law  to  enable  the 
deportation  of  obnoxious  criminals  as  a  measure  of  social  self-defense. 

"In  the  second  place,  the  provision  that  the  convicts  'shall  be  sent 
back  to  the  nations  to  which  they  belong  and  from  whence  they  came,' 
might  involve  the  questions  :  To  wliat  nation  does  a  convict  belong;  to 
that  which  claims  him  as  a  citizen  or  that  which  claims  him  as  a  convict 
under  its  laws!    And  from  what  nation  docs  he  come;  from  that  of 

521 


§200.]     C'lTIZEXSllll',  .N.\  I  I  Jy- AI.I/A'lloN,  AM)  ALIENAGE.    (cilAr.  VII. 

allegiance,  or  ol'  coii\  ictioii,  or  of  la.st  dei)artui'c  ?  A  decisiuii  in  any 
given  case  uiigbt  involve  a  practically  judicial  act  to  bo  periormed  by 
persons  or  cbaritable  bodies,  in  whom  the  law  cannot  have  intended  to 
vest  judicial  powers. 

"  The  statute  is  mandatory  that  the  convicts  it  names  shall  be  sent 
back.  It  would  seem  desirable,  that  in  the  regulations  which  you  are 
directed  to  i)rescribe  for  such  sending  back,  the  interpretation  in  these 
regards  shall  be  clear,  and  I  might  add  that  it  is  especially  desirable 
that  neither  officers  of  this  Government  nor  State  boards  nor  private 
associations  or  individuals  be  held  responsible  for  the  safe  conveyance 
of  an}-  foreign  convict  from  the  United  States  to  the  territory  of  the 
country  where  the  crime  was  committed." 

Mr.  Frcliughuyseu,  Sec.  of  State,  to  Mr.  Folger,  Nov.  15, 1882.    MSS.  Dom.  Let. 

"I  have  to  acknowledge  the  receipt  of  your  No.  183,  ai)prising  me  of 
the  resolution  of  the  Swiss  cantonal  authorities  of  Zug,  to  grant  a 
release  to  the  prisoner  J.  Binzegger,  a  confirmed  incendiary,  on  con- 
dition of  his  emigrating  to  this  country,  and  to  commend  your  zeal 
and  promptitude  in  protesting  to  the  Swiss  Government  in  the])remises. 

"  It  is  hoped  and  presumed  that  the  action  of  the  High  Federal  Gov- 
ernment will  prevent  the  consummation  of  the  design  to  land  this  crim- 
inal on  our  shores,  as  a  violation  of  the  comity  which  should  obtain 
between  the  two  Governments;  but  should  it  in  any  way  transpire  that 
Binzegger  embarks  en  route  to  this  country,  you  will  please  at  once 
telegraph  the  fiicts.  Meantime  I  shall  ask  the  Secretary  of  the  Treasury 
to  take  the  necessary  steps  for  the  return  of  Binzegger,  if  he  lands  here. 
It  is,  of  course,  desirable  to  be  advised  of  the  name  of  the  vessel  by 
which  he  leaves  Europe  and  the  date  of  sailing." 

Mr.  Frelinghuyscn,  Sec.  of  State,  to  Mr.  Cramer,  Dec.  11,  1884.     MSS.  Inst., 
Switz. ;  For.  Eel.,  1885. 

"  In  my  dispatch  'So.  183,  of  the  26tli  ultimo,  I  had  the  honor  to  in- 
form you  that  in  a  note  to  the  Swiss  Federal  Council  of  the  same  date 
(a  copy  of  which  was  inclosed  in  said  dispatch),  1  protested  against  the 
discharge  from  prison,  ordered  by  the  grand  council  of  the  canton  of 
Zug,  of  one  Joseph  Binzegger,  who  had  been  sentenced  to  imprisonment 
for  life  on  account  of  incendiarism,  upon  the  condition  of  his  emigrating 
to  the  United  States. 

"On  the  16th  instant  a  note  was  received  from  the  Federal  Council, 
dated  the  15th  instant,  in  which  is  stated  that,  in  general,  the  federal 
authorities  had  done  all  in  their  power  to  prevent  the  emigration  of 
iini)roper  persons  ;  that  in  the  particular  case  of  Joseph  Binzegger  he 
had  been  pardoned  without  any  restrictive  condition,  and  that  instead 
of  his  going  to  the  United  States  he  intends  to  emigrate  to  Buenos 
Ayres. 

"A  copy  of  this  note,  with  a  translation  thereof,  is  herewith  in- 
closed." 

Mr.  Cramer  to  Mr.  Frelinghuysen,  Jan.  22.  1885,  in  reply ;  ihid. 
On  tlio  same  topic,  see  Mr.  Frelinghuysen  to  Mr.  Kasson,  Jan,  15,  1885,  quoted 
8uj)ra,  ^181. 

522 


CHAP.  VII. J  ALIENS:    EXPULSION    OF.  [§  20(^. 

"  Your  No.  204,  of  the  20tli  ultimo,  relative  to  the  expulsion  of  Mr. 
H.  T.  C.  Emeis,  a  uaturalized  citizen  of  the  United  States,  from  the 
territory  of  the  canton  of  Neuchatel,  has  been  received. 

"The  statements  which  you  communicate  to  regard  to  the  passport, 
certificate  of  naturalization,  and  description  of  Henry  Theodore  Christian 
Emeis  are  verified  by  the  records. 

"The  letter  of  Mr.  Emeis  addressed  to  you  on  the  7th  ultimo,  seems 
to  be  an  honest  and  true  statement.  It  appears  therefrom  that  jMr. 
Emeis  had  been  a  considerable  period  making  trial  of  different  altitudes 
in  Switzerland  for  his  health  ;  that  his  movements  from  i^lace  to  place, 
though  i^erfectly  comi^rehensible  from  a  proper  i)oint  of  view,  were 
either  willfully  or  otherwise  misinterpreted  j  that  his  comparative  ignor- 
ance of  the  French  language,  and  of  the  adulterated  German  of  the 
locality,  complicated  the  case,  and  that  the  concluding  act  of  the  local 
authorities  was  to  expel  him  from  the  canton. 

"  You  say  you  have  requested  the  High  Federal  Council  to  cause  the 
authorities  of  Neuchatel  to  revoke  the  order  of  expulsion  as  an  act  of 
simple  justice,  due  alike  to  Mr.  Emeis  and  to  the  country  of  which  he 
is  a  citizen,  and  trust  your  course  will  be  approved. 

"  It  ajjpears  to  this  Department  that  such  an  act  as  you  solicit  at  the 
hands  of  the  Swiss  Government  is  the  least  thing  which  could  be  asked 
for  in  the  way  of  reparation,  and  to  its  extent  it  can  be  but  acceptable. 
Y"our  course,  therefore,  is  approved." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cramer,  Mar.  9,  1885.     MSS.  lust.,  Switz. ; 
For.  Eel.,  1885. 

"I  herewith  inclose  a  copy  of  the  affidavit  of  Mr.  Charles  L.  George, 
a  naturalized  citizen  of  the  United  States,  together  with  his  citizen 
paper  and  that  of  his  father,  Mr.  Peter  George,  in  support  of  his  com- 
plaint against  the  German  Government  for  false  imprisonment,  the  facts 
of  which  appear  to  be  as  follows: 

"Peter  George,  the  father,  a  native  of  Germany,  came  to  this  country 
in  1810,  was  naturalized,  as  shown  by  his  citizen  paper,  on  the  IGth  Octo- 
ber, 1848,  returned  to  Germany  in  1851,  and  married  there.  The  sou 
Charles  was  born  at  Lamperts-loch,  Alsace-Lorraine,  on  the  9th  January, 
185P,  that  is,  after  his  father  had  been  residing  there  eight  years.  Both 
father  and  son  then  appear  to  have  continued  to  reside  there  until  the 
son  was  over  sixteen  years  of  age,  and  then,  in  May,  1875,  they  came  to- 
gether to  the  United  States,  and  have  since  resided  more  or  less  con- 
tinuously at  Philadelphia.  The  son  states  that  he  voted  when  he  came 
of  age,  that  is,  in  1881,  by  virtue  of  his  father's  citizenship,  but  he  ap- 
pears, in  anticipation  of  his  return  to  Germany,  to  have  taken  out  his 
own  citizen  paper  on  the  10th  May,  1884.  Furnished  with  this  docu- 
ment the  son,  Charles,  returned  on  a  visit  to  his  birthplace,  arriving 
there  on  Juno  2,  1884.  On  the  12th  July  of  the  same  year  he  was 
arrested  by  a  gendarme  named  Kick,  at  the  town  of  Sulz,  on  the  Wald, 

623 


§  206.]     CITIZF.NSIIIP,  NATITRA1>TZATI0N,  AND  ALIENAGE.    [ciTAP.  Vlt. 

and  taken  lo  iStra.sbuig',  '60  miles  distant  by  railroad,  where  he  was 
iinprisoued.  Tlie  prison  inspector  told  liini  Iiis  papers  Lad  been  sent 
for,  had  arrived  the  third  day  after  his  arrest,  and  had  been  sent  to  the 
stattlialter-general,  Mantenflel.  AVhen  he  liad  been  imprisoned  twenty 
days  his  iriends  petitioned  for  his  release,  but  were  told  that  he  must 
remain  in  prison  for  forty  days,  which  he  did,  and  was  then  released. 
When  arrested  he  had  03  marks,  which  were  taken  from  him,  and  on  his 
release  40  marks  and  71  pt'enni<?s  of  them  were  retained,  as  the  authori- 
ties told  him,  to  pay  his  board  while  in  prison  and  his  railroad  trans- 
portation, though  he  api^ears  to  have  been  put  to  hard  enough  work 
from  5  a.  m.  till  7  p.  m.,  to  pay  for  the  poor  food  which  ho  alleges  that 
he  received  in  prison. 

"  This  case  would  seem  to  present  some  new  points  of  difference  with 
other  cases  in  Alsace-Lorraine  and  also  to  be  at  variance  with  the  course 
of  procedure  which  this  Department  understands  was  to  be  adopted  by 
the  German  authorities  in  their  treatment  of  naturalized  citizens  of 
other  countries  whom  they  find  in  that  province. 

"Taking  it  for  granted  that  the  German  Government  still  adheres  to 
its  previous  refusal  to  apply  the  Bancroft  treaty  to  Alsace-Lorraine,  and 
referring  to  the  edict  of  the  statthalter  of  the  23d  August,  1884,  inclosed 
in  Mr.  Everetfs  Xo.  327,  of  the  4th  September,  1884,  it  would  appear 
that  the  utmost  penalty  for  foreign  citizens  was  expulsion  from  the 
province  in  case  they  declined  to  resume  German  nationality,  and,  if 
the  third  article  of  that  edict  is  correctly  understood  here,  inimarried 
foreigners  would  be  allowed  to  remain  in  Alsace-Lorraine  during  good 
behavior,  and  should  thej*  marry,  even  their  children  might  be  allowed 
to  remain  until  they  reached  the  military  age.  There  is  no  suggestion 
of  fine  or  imprisonment  in  any  case  as  a  penalty  for  avoidance  of  mili- 
tary obligation  by  emigration*  Even  in  the  case  of  Constant  Golly,  as 
given  in  Mr.  Kasson's  No.  261,  who  was  formally  charged  by  the  impe- 
rial foreign  office,  in  their  note  of  the  12th  May,  1885,  with  intention  to 
evade  military  duty,  there  was  no  fine  or  imprisonment,  and  he  was 
simply  told  to  leave  by  a  certain  date. 

"  In  the  present  case  of  Charles  George,  an  imprisonment  of  forty  days, 
in  spite  of  a  petition  to  the  statthalter,  was  rigorously  insisted  upon, 
and  a  part  of  the  money  found  on  him  was  retained  to  pay  for  his  trans- 
portation to  prison  and  his  board  while  there,  which,  as  far  as  this 
Department  is  aware,  is  the  first  time  an  American  prisoner  in  Germany 
has  been  called  upon  to  refund  such  expenses. 

"In  Mr.  George's  case  it  is  not  evident  on  what  ground  the  Alsace- 
Lorraine  authorities  could  base  a  charge  of  want  of  good  faith  on  his 
part.  He  was  not  sixteen  when  he  left  Germany  for  America,  and  the 
period  of  being  summoned  for  military  service  was  too  far  distant,  there- 
fore, to  look  to  as  a  reason.  The  fact  that  his  father  accompanied  him 
and  remained  here  with  him  ought  to  tell  in  his  favor,  and  he  does  not 
appear  to  have  been  charged  with  wanting  to  remain  in  Alsace-Lor- 
524 


CHAP,  VII.]  ALIENS:    EXPULSION    OF.  [§206. 

raiue,  wliicli  is,  after  all,  tbe  grievance  complained  of  in  the  stattbaltei's 
edict,  and  against  wbicli  all  tlie  precautions  and  punishments  seem  to 
be  directed. 

"  Tbe  danger  predicted  by  tbe  stattbalter  is  that  'in  time  tbe  popu- 
lation of  tbe  country  will  be  in  a  great  measure  composed  of  foreigners 
and  tbe  German  armj'^  will  lose  a  considerable  number  of  recruits.' 
Judging  bim  from  tbis  point  of  view,  Mr.  George  neitber  deserved 
imprisonment  nor  expulsion.  Tbe  arguments  of  tbe  minister  of  foreign 
afiairs,  as  given  in  Mr.  Kasson's  No.  2G5,  would  seem  to  bave  no  applica- 
tion here,  as  tbey  regard  tbe  two-years'  clause  of  tbe  Bancroft  treaty, 
wbicb  docs  not,  according  to  German  interpretation,  cover  Alsace- 
Lorraine. 

"You  will  take  an  early  opportunity  to  bring  tbe  case  of  Mr.  George 
to  tbe  attention  of  tbe  foreign  office,  witb  a  request  for  a  careful  exam- 
ination into  it,  and  sucb  explanations  as  may  best  promote  a  contin- 
uance of  tbe  friendly  relations  between  tbe  Governments  of  Germany 
and  tbe  United  States." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Peudlelon,  July  7,  1885.     MSS.  lust.,  Germ. ; 
For.  Rel.,  18.85. 

"Your  dispatcb  Ko.  13,  of  the  22d  ultimo,  in  relation  to  tbe  expulsion 
of  Meyer  Gad  from  Prussia,  has  been  received  and  considered  by  tbe 
Department. 

"It  seems  from  tbe  accompanying  correspondence  that  Meyer  Gad, 
whose  expulsion  from  Germany  is  tbe  ground  of  complaint,  was  origi- 
nally a  Prussian  subject,  who  settled  in  Kempen,  in  Prussia,  from  which 
country  he  was  expelled  in  1878  as  guilty  of  various  acts  of  dishonesty 
towards  his  employer.  He  then  made  an  excursion  into  Austria,  and 
afterwards  visited  the  United  States,  where  he  claims  to  bave  been 
naturalized.  He  afterwards  went  back  to  Kempen,  tbe  scene  of  his 
former  alleged  misconduct,  where  he  was  notified  by  the  Government 
that  he  must  leave  tbe  country  at  tbe  end  of  six  weeks. 

"Tbis  is  bis  grievance  and  as  to  this  I  have  to  say  that  on  general 
principles  it  is  within  the  power  of  the  German  Government  to  make 
and  enforce  sucb  a  decree  of-expulsion,  nor  can  this  Government  object, 
unless  the  exclusion  be  enforced  with  undue  harshness.  Tbe  same 
prerogative  was  asserted  by  our  Government  in  the  alien  actj  and  we 
have  recently  taken  measures  to  exclude  paupers  and  convicts  from 
our  shores. 

"  It  does  not  appear,  therefore,  that  we  can  object  to  the  German 
Government  refusing  to  receive  back  to  the  scene  of  bis  alleged  former 
dei)redations  Meyer  Gad,  who  appears  to  have  been  a  wandering,  if  not 
])redatory,  Polish  Jew,  Kussian  by  allegiance  of  birth,  American  by 
allegiance  of  naturalization,  Austrian  by  allegiance  of  residence,  and 
(icnnaii,  if  he  could  bo,  by  allcgianc*'  of  ]»r<'sent  cb'clion. 

525 


§  206.J    CITIZENSHir,  NATURALIZATION,  AND  ALIENAGE.    [CHAP.  VII. 

"  It  may  be  observed  that  there  is  no  treaty  that  covers  the  case  of 
Mr.  Gad,  since  he  was  not  a  German  subject  by  origin;  but  the  subject 
bj'  origin  of  Eussia." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  reudleton,  July  9,  1885.     MSS.  lust.,  Gorm. ; 

For.  Kel.,  1885. 
On  the  subject  of  expulsion,  see  further  Mr.  rrelingliuyseu  to  Mr.  Kassou,  Jan. 

15,  1885,  quoted  supra,  $  185 ;  eamo  to  same,  Feb.  7,  1885,  quoted  supra, 

^  184. 

As  to  expulsion  of  Jews  from  Russia  or  other  countries,  see  supra,  $  55. 

"  By  the  act  of  Congress  of  March  3,  1875,  and  August  3,  1882,  it  is 
made  unlawful  for  certain  persons  to  immigrate  to  the  United  States. 
Tjovision  is  made  for  the  inspection  of  a  vessel,  if  there  is  reason  to 
believe  that  such  persons  are  on  board,  and  for  their  return  at  the  ex- 
l)ense  of  the  vessel,  f  As  to  this  act  see  Brit,  and  For.  St.  Pap.,  vol.  Gl, 
1S77-'7S.) 

''  Dii)lomatic  ofticers  are  enjoined  to  exert  an  active  vigilance  to  i)re» 
vent  the  deportation  of  these  persons,  and  should  they  depart  for  the 
United  States  notice  thereof  should  immediately  be  given  that  they 
may  be  stopped  before  landing. 

"  The  shipping  of  known  paupers  or  criminals  to  the  United  States  is 
regarded  as  a  violation  of  the  comity  which  ought  to  characterize  the  in- 
tercourse of  nations,  and  should  be  prevented  by  every  proper  measure. 

"The  accessions  to  the  polygamous  Mormon  community  are  largely 
drawn  from  the  ignorant  classes  of  Europe.  A  recent  decision  of  the 
Supreme  Court  of  the  United  States  has  determined  that  the  polygamy 
of  Mormonism  is  a  violation  of  the  laws  of  the  United  States  respecting 
the  crime  of  bigamy,  the  provisions  of  which  are  embraced  in  section 
5352  of  the  Revised  Statutes.  A  recent  statute  defines  the  offense  of 
polygamy  and  provides  for  prosecution  and  punishment.  It  is  believed 
that  no  friendly  power  will  knowingly  lend  its  aid  to  attempts  made 
within  its  borders  against  the  laws  and  Government  of  the  United 
States. 

"Accordingly,  the  diplomatic  representatives  of  the  United  States  in 
Great  Britain,  Denmark,  Sweden  and  Norway,  Switzerland,  Germany, 
Austria-Hungary,  Italy,  Belgium,  the  ^Netherlands,  and  France,  have 
heretofore  been  instructed  to  urge  the  subject  upon  the  attention  of  the 
Governments  to  which  they  are  accredited,  in  the  interest  not  merely  of 
a  faithfid  execution  of  the  laws  of  the  United  States,  but  of  the  good 
order  and  morality  which  are  sought  to  be  promoted  by  all  civilized 
countries.''' 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 

The  act  of  February  26, 1885  (48th  Cong.,  2d  sess.,  chap.  lGl-164),  pro- 
vides as  follows : 

"Section  1.  That  from  and  after  the  passage  of  this  act  it  shall  be 
unlawful  for  any  person,  company,  partnership,  or  corporation,  in  any 
manner  whatsoever,  to  prepay  the  transportation,  or  in  any  way  assist 
or  encourage  the  importation  or  migration  of  any  alien  or  aliens,  any 
foreigner  or  foreigners,  into  the  United  States,  its  Territories,  or  the 
District  of  Columbia,  under  contract  or  agreement,  parol  or  special, 
express  or  implied,  made  previous  to  the  importation  or  migration  of 
such  alien  or  aliens,  foreigner  or  foreigners,  to  perform  labor  or  service 
of  any  kind  in  the  United  States,  its  Territories,  or  the  District  of  Co- 
lumbia. 

o2G 


CHAP.  VII.]  ALIENS:    EXPULSION    OF.  [§  20G. 

"  Sec.  2.  That  all  contracts  or  agreements,  express  or  implied,  parol 
or  special,  which  may  hereafter  be  made  by  and  between  any  person, 
company,  partnership,  or  corporation,  and  any  foreigner  or  foreigners, 
alien  or  aliens,  to  perform  labor  or  service  or  having  reference  to  the 
performance  of  labor  or  service  by  any  i)erson  in  the  United  States, 
its  Territories,  or  the  District  of  Columbia  previous  to  the  migration 
or  importation  of  the  person  or  persons  whose  labor  or  service  is  con- 
tracted for  into  the  United  States,  shall  be  utterly  void  and  of  no  effect. 

"Sec.  3.  That  for  every  violation  of  any  of  the  provisions  of  section 
one  of  this  act  the  person,  partnership,  company,  or  corporation  violating 
the  same,  by  knowingly  assisting,  encouraging  or  soliciting  the  migra- 
tion or  importation  of  any  alien  or  aliens,  foreigner  or  foreigners,  into 
the  United  States,  its  Territories,  or  the  District  of  Columbia,  to  per- 
form labor  or  service  of  any  kind  under  contract  or  agreement,  express 
or  implied,  j^arol  or  siDCcial,  with  such  alien  or  aliens,  foreigner  or  for- 
eigners, previous  to  becoming  residents  or  citizens  of  the  United  States, 
shall  forfeit  and  pay  for  every  such  offense  the  sum  of  one  thousand 
dollars,  which  may  be  sued  for  and  recovered  by  the  United  States  or 
by  any  person  who  shall  first  bring  his  action  therefor  including  any 
such  alien  or  foreigner  who  may  be  a  party  to  any  such  contract  or 
agreement,  as  debts  of  like  amount  are  now  recovered  in  the  circuit 
courts  of  the  United  States  ;  the  proceeds  to  be  paid  into  the  Treasury 
of  the  United  States;  and  separate  suits  may  be  brought  for  each  alien 
or  foreigner  being  a  party  to  such  contract  or  agreement  aforesaid. 
And  it  shall  be  the  duty  of  the  district  attorney  of  the  proper  district 
to  prosecute  every  such  suit  at  the  expense  of  the  United  States. 

"  Sec.  4.  That  the  master  of  anj^  vessel  who  shall  knowingly  bring 
within  the  United  States  on  any  such  vessel,  and  land,  or  permit  to  be 
landed,  from  any  foreign  i)ort  or  place,  any  alien  laborer,  mechanic,  or 
artisan  who,  previous  to  embarkation  on  such  vessel,  had  entered  into 
contract  or  agreement,  parol  or  special,  express  or  implied,  to  perform 
labor  or  service  in  the  United  States,  shall  be  deemed  guilty  of  a  mis- 
demeanor, and  on  conviction  thereof,  shall  be  punished  by  a  fine  of  not 
more  than  five  hundred  dollars  for  each  and  every  such  alien  laborer, 
mechanic  or  artisan  so  brought  as  aforesaid,  and  may  also  be  imprisoned 
for  a  term  not  exceeding  six  months. 

"Sec.  5.  That  nothing  in  this  act  shall  be  so  construed  as  to  prevent 
any  citizen  or  subject  of  any  foreign  country  temporarily  residing  in 
the  United  States,  either  in  private  or  official  capacity,  from  engaging, 
under  contract  or  otherwise,  persons  not  residents  or  citizens  of  the 
United  States  to  act  as  private  secretaries,  servants,  or  domestics  for 
such  foreigner  temporarily  residing  in  the  United  States  as  aforesaid  ; 
nor  shall  this  act  be  so  construed  as  to  prevent  any  person  or  persons, 
partnership,  or  corporation  from  engaging,  under  contract  or  agreement, 
skilled  workman  in  foreign  countries  to  perform  labor  in  the  United 
States  in  or  upon  any  new  industry  not  at  present  established  in  the 
United  States:  Provided,  That  skilled  labor  for  that  pur[)ose  cannot  be 
otherwise  obtained  ;  nor  shall  the  provisions  of  this  act  apply  to  pro- 
fessional actors,  artists,  lecturers,  or  singers,  nor  to  persons  emidoyed 
strictly  as  ])ersonal  or  domestic  servants :  rrovlded,  Tliat  nothing  in 
this  act  sliail  bo  construed  as  prohibiting  any  individual  from  assisting 
any  member  of  his  family  or  any  relativ(;  or  personal  friend,  to  migrat*'. 
from  any  foreign  country  to  the  United  States,  for  tlie  purpose  of  set- 
tlement hei-e. 

527 


§  207.]   crnzKNSiiip,  naturalization,  and  alienage,   [chap.  vii. 

"Sec.  0.  Tlnit  all  laws  or  parts  of  laws  conflicting  herewith  be,  and 
the  same  are  hereby,  repealed.  " 

"  It  is  not  only  the  right  but  may  sometimes  be  the  duty  of  states  to 
establish  checks  upon  the  transit  and  sojourn  of  foreigners,  however 
harsh  those  regulations  may  appear,  or  opi)Osed  to  old  established 
policy.  Indeed,  iu  two  countries  where  more  freedom  of  entry  or  exit 
and  fewer  restrictions  are  to  be  met  with  than  elsewhere,  within  the 
last  few  years  such  regulations  have  been  i)ul)lishcd.  Thus,  during  the 
revolutionary  period  of  18-48,  an  act  of  Parliament  (11  and  12  Vict.,  c 
20)  was  i)assed  in  Great  Britain  *  *  ♦  by  which  power  was  given 
to  the  executive  in  England  and  Ireland  to  remove  aliens  from  the 
realm;  and  iu  the  United  States  it  was  declared,  by  an  order,  dated  19th 
August,  1801,  that  no  i)erson,  if  a  foreigner,  should  be  allowed  to  land 
in  the  United  States,  without  a  passport  from  his  own  Government, 
countersigned  by  a  minister  or  consul  of  the  United  States." 

Abdy's  Kent,  1 10.  This  order,  Avhicli  grew  out  of  tlic  exigencies  of  the  civil  war, 
is  no  longer  iu  force.     See  Loudon  Times,  January  2,  18G5. 

The  following  documents  may  bo  referred  to  iu  this  relation  : 

Mr.  Russell's  report  of  July  2,  1838  (House  Rep.  1040,  25tli  Cong.,  2d  eess.),  on 
foreign  paupers. 

President  Van  Buren's  messages  of  May  15,  May  25,  1838,  with  accompanying 
papers  (House  Ex.  Doc.  370,  25th  Cong.,  2d  sess.). 

Senate  Doc.  5,  34th  Cong.,  2d  sess. 

Report  of  Mr.  Fuller,  Aug.  16,  185G  (House  Rep.  359,  34th  Cong.,  Ist  sess.) 

House  Ex.  Doc.  2.53,  43d  Cong.,  1st  sess. 

A  statute  of  the  State  of  California  provided  that  the  commissioner 
of  immigration  should  satisfy  himself  whether  any  passenger  from  a 
foreign  port,  not  a  citizen  of  the  United  States,  belongs  to  certain  enu- 
merated classes,  among  which  were  lunatics,  idiots,  and  lewd  or  de- 
bauched women,  and  that  no  such  person  should  be  permitted  to  land 
until  a  bond  be  given  against  any  expense  to  be  incurred  for  relief  or 
support.  The  master,  owner,  or  consignee  was  allowed  to  commute  by 
paying  such  sums  as  the  commissioner  might  think  proper  to  exact.  It 
was  decided  that  the  object  of  this  statute  being  to  extort  money  from 
a  large  class  of  passengers,  or  to  prevent  their  immigration,  thus  in- 
vading the  functions  of  Congress  in  regulating  commerce,  it  is  in  con- 
flict with  the  Constitution,  and  therefore  void. 
Chy  Lung  r.  Freeman,  92  U.  S.,  275. 

XIII.  CQRFQlUTlOyS. 

FOREIGX  CORPORATIOXS  PRESUMED  TO   BE   ALIENS. 
§  207. 

The  members  of  a  foreign  corporation  are  conclusively  presumed  to 
be  aliens,  for  the  purpose  of  sustaining  the  jurisdiction  of  the  circuit 
court  over  a  suit  brought  by  or  against  such  a  corporation. 

Xationol  Stoamsliip  Co.  r.  Dyer,  1  Sup.  C't  Rep'r,  .58;  Ferry  r.  Imperial  Fire 

Ins.  Co.,  9  AVest.  Jur.,551. 
As  to  corporations  as  claimants,  see  infra,  ^  217. 

528 


CHAPTER  VIII. 

NORTH  AMERICAN  INDIANS. 

I.  Jurisdiction  and  title. 

(1)  Are  domestic  (lependent  nationSj  §  208. 

(2)  Cannot  transmit  title,  $  209. 
II.  Treaties  "with. 

(1)  Must  be  duly  solemnized,  $  210. 

(2)  Liberally  construed,  §  211. 

I.  JURISDICTION  AND  TITLE. 

(1)  Are  domestic  dependent  nations. 

§  208. 

"The  policy  of  tbe  United.  States  lias  been  to  allot  to  the  Iiidiaii 
tribes,  ■who  were  the  original  occupants  of  our  soil,  separate  territories 
iu  -which  they  are  to  enjoy  a  modified  sovereignty.  To  subject  them, 
"while  retaining  their  tribal  organizations,  to  such  laws  as  are  passed  for 
our  Territories,  would  be  cruel  and  absurd.  When  thus  grouped  in 
tribes  they  are  iucapable  of  "working  courts  of  record  similar  to  those 
"we  find  necessary  to  the  maintenance  of  justice  among  ourselves;  prop- 
erty as  something  susceptible  of  hypothecation  and  open  to  execution 
for  debt  they  know  nothing  of;  the  marriage  relation,  as  "we  hold  it,  as 
monogamous  and  indissoluble,  and  vesting  the  parties  with  specific 
rights  in  each  other's  property,  is  an  institution  "which  in  their  pres- 
ent state  of  civilization,  could  not  be  forced  on  them.  Besides  this, 
their  subjugation  and  absorption  as  a  mass  has  never  been  attempted; 
their  tribes  continue  independent ;  those  belonging  to  such  tribes  are 
not,  in  the  proper  sense,  citizens  of  f  he  United  States.  Hence  it  is  that 
treaties  innumerable  have  been  negotiated  with  them  as  with  independ- 
ent sovereignties,  and  though  when  mingling  in  the  population  of  a 
State  they  are  subject  to  State  law,  they  are  regarded,  when  living  on 
their  own  reservations,  as  subject,  under  certain  limitations,  to  their 
distinctive  jurisprudence,  civil  and  criminal.  They  are,  in  Chief-Justice 
Marshall's  language,  '  domestic  dependent  nations.'  When  retaining 
their  tribal  relations  they  are  not  citizens  of  the  United  States,  nor  arc 
they  citizens  of  any  particular  State,  unless  made  so  by  its  distinctive 
laws.  Certain  Federal  legislation,  however,  they  are  subjected  to,  even 
when  grouped  in  tribes.  Thus  in  18G8  Congress  extended  its  laws  im- 
])Osing  taxes  on  distilled  si)irit8,  fermented  liquors,  tobacco,  and  cigars 

S.  Mis.  lOL*— vol..  II M  529 


§  208.]  NORXn    AMERICAN    INDIANS.  [CHAP.  VIII. 

to  the  territory  occupied  by  tbe  Indiaus ;  aud  the  Supreme  Court  held 
that  this  legishition  was  <a  constitutional  exercise  of  tlie  power  vested 
in  Congress,  and  gave  effect  to  the  statute,  notwithstanding  it  came  in 
conflict  with  the  tenth  article  of  the  treaty  of  18GG,  between  the  United 
States  and  the  Cherokee  Indians.  Aud  section  2145  of  the  Revised 
Statutes  apjdies  to  the  Indian  country  the  laws  of  the  United  States  as 
to  crimes  committed  in  any  ])lace  '  within  the  sole  and  exclusive  juris- 
diction of  the  United  States,'  with  the  limitation  made  in  the  next  sec- 
tion that  this  jurisdiction  shall  not  be  construed  to  extend  to  -crimes 
committed  by  one  Indian  against  the  ])ersou  or  projierty  of  another  In- 
dian, nor  to  any  Indian  committing  an  oflense  in  the  Indian  country 
who  has  beeu  punished  by  the  local  law  of  the  tribe,  or  to  any  case 
where,  by  treaty  stii)ulation8,  the  exclusive  jurisdiction  over  such  of- 
fenses is  or  may  be  secured  to  the  ludian  tribes  respectively.'  Yet,  uot- 
withstanding  this  subordination  iu  these  specified  relations,  Indians 
belonging  to  tribal  organizations,  so  far  from  being  citizens  of  the 
States  in  which  they  may  be  resident,  are  members  of  alien  nationali- 
ties. If  the  doctrine  of  the  ubiquity  of  national  status  be  accejjted, 
they  carry  the  ])rivileges  as  well  as  the  disabilities  of  their  status  where- 
ever  they  go.  To  accept  that  doctrine  in  this  case  would  sustain  not 
merely  on  Indiau  reserves,  where  by  treaty  Indian  domestic  law  is  su- 
preme, but  throughout  the  land,  the  civil  irresponsibilities  of  Indians. 
They  are  irresponsible  by  their  own  laws;  they  would  continue  irre- 
sponsible when  they  leave  their  reserves,  \^herever  they  might  wander. 
The  answer  to  this  is,  that  artificial  limitations  of  capacity  are  not 
extraterritorial,  aud  that  no  State  will  recognize  foreign  incapacities 
inconsistent  with  its  particular  policy." 

AVhart.  Confl.  of  Laws,  5  9. 

"Adojjtion  in  a  North  American  Indian  tribe,  according  to  our  legis- 
lation, involves  a  change  of  political  allegiance  and  of  personal  law  as 
well  as  of  family  relations.  The  person  adopted  loses  full  citizenship 
in  the  United  States,  and  in  the  particular  State  in  which  he  previously 
resided,  aud  becomes  nationalized  in  the  tribe  of  his  adoption.  lie  is 
no  longer  taxable  by  either  Federal  or  State  authorities,  nor  is  he  liable 
to  suit,  in  either  Federal  or  State  court,  by  other  members  of  his  tribe. 
Ue  may  be  indicted,  it  is  true,  in  State  or  Territorial  courts  for  crimes 
committed  by  him  on  persons  not  of  his  tribe;  but  for  oflenses  against 
members  of  his  tribe  he  is  only  justiciable  before  the  tribal  authorities. 
So  far  as  concerns  his  domestic  relations,  he  is  governed,  not  by  Terri- 
torial, but  by  tribal  law.  When  living  within  the  tribal  reservation  he 
is  not  indictable  for  polygamy,  should  he  have  two  wives;  though  it 
would  be  otherwise  should  he  leave  the  reservation  and  undertake  to 
carry  his  two  wives  with  him  into  non-tribal  life.  In  case  of  his  con- 
tracting in  the  tribe  a  marriage  not  monogamous,  this  marriage,  though 
valid  in  the  tribe,  would  be  considered  invalid  by  State  or  Federal  courts. 
Fie  inherits,  after  adoption,  in  accordance  with  tribal  law;  but  in  those 
tribes  (forming  a  great  majority)  in  which  succession  is  only  through 
womeu,  only  through  the  adoptive  mother  or  the  adoptive  sister.  In 
short, while  he  retains  his  subjection  to  the  Territorial  government  (State 
or  Federal,  as  the  case  may  be),  in  all  that  relates  to  transactions  out- 
side of  the  tribe,  so  far  as  concerns  transactions  within  the  tribe,  his 
allegiance  is  to  the  tribe,  and  he  is  governed  exclusively  by  tribal  law. 

530 


CHAP.  VIII.]        ARE   DOMESTIC,    DEPENDENT   NATIONS.  [§  208. 

In  addition  to  this,  he  becomes  a  member  of  the  family  by  which  he  is 
specially  adopted." 

Whart.  Confl.  of  Laws,  §  252. 

That  Indians  are  not  technically  citizens,  see  supra,  ^  196;  Whart.  Com.  Am. 
Law,  §  434. 

That  Indians  are  not  covered  by  the  14th  and  15th  amendments  to  the  Consti- 
tution, ihid.,  $  585;  and  see  article  in  15  Am.  LawEev.,21.     Supra,  $  196. 

For  an  account  of  negotiations  with  the  Indians  of  the  Six  Nations,  in  1790 
and  1791,  see  2  Life  of  T.  Pickering,  455,  493;  3  iUd.,  29,  65. 

As  to  Indian  citizenship,  see  article  in  20  Am.  Law  Rev.,  183;  Mar.,  1886. 

That  North  American  Indian  tribes  are  to  be  classified  with  "half  sovereign 
states,"  see  Whart.  Com.  Am.  Law,  §  137. 

"  The  right  of  the  citizens  of  the  United  States  to  hold  commerce 
■with  the  aboriginal  natives  of  the  northwest  coast  of  America,  without 
the  territorial  jurisdiction  of  other  nations,  even  in  arms  and  ammuni- 
tions of  war,  is  as  clear  and  indisputable  as  that  of  navigating  the 
seas." 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Poletica,  Mar.  30,  1822.  MSS.  Notes,  For. 
Leg. 

"  The  United  States  may  as  well  undertake  to  maintain  and  hold  po- 
litical relation  with  the  county  of  Gal  way,  in  Ireland,  or  the  shire  of 
Perth,  in  Scotland,  as  for  England  to  maintain  or  hold  such  relation 
with  any  tribe  of  American  Indians  outside  of  her  own  colonial  posses- 
sions in  America." 

Mr.  Marcy,  Sec,  of  State,  to  Mr.  Dallas,  July  26,  1856.     MSS.  Inst.,  Gr.  Brit. 

Indian  tribes  within  the  United  States  do  not  constitute  foreign  na- 
tions. They  are  regarded  as  in  a  state  of  pupilage,  and  may  more  cor- 
rectly be  denominated  domestic  dependent  nations. 

Cherokee  Nation  v.  State  of  Georgia,  5  Pet.,  1. 

The  United  States  consider  the  Indian  nations  as  capable  of  main- 
taining the  relations  of  peace  and  war,  with  theory  of  governing  them- 
selves, under  their  protection,  and  of  making  treaties  with  them.     But 
the  Indians  are  not  treated  as  foreign  nations,  in  the  ordinary  sense. 
Worcester  v.  The  State  of  Georgia,  6  Pet.,  515. 

The  Cherokee  Nation  is  not  a  foreign  nation,  but  in  its  semi-civilized 
state  bears  a  close  analogy  to  a  provisional  government  of  a  Territorial 
character. 

Mackey  v.  Coxe,  18  How.,  100. 

Indian  tribes  are  states  in  a  certain  sense,  though  not  foreign  states, 
or  States  of  the  United  States,  within  the  meaning  of  the  second  section 
of  the  third  article  of  the  Constitution,  which  extends  the  jiulicial  power 
to  controversies  between  a  State  and  foreign  states,  etc. 

Holden  v.  Joy,  17  Wall.,  211. 

531 


§    208.]  NORTH    AMERICAN    INDIANS.  [CHAP.  VIII. 

Ill  Crow  Bog,  in  re.,  109  U.  S.,  55G,  it  was  held  by  the  Supreme  Court 
of  the  United  States  in  1883,  that  the  United  States  courts  have  no 
jurisdiction  of  the  murder  of  one  tribal  Indian  by  another. 

An  Indian  who  has  voluntarily  separated  himself  from  a  tribe  recog- 
nized as  such  by  the  Government  of  the  United  States,  and  who  has 
tal^en  up  his  residence  among  the  white  citizens  of  a  State,  without 
being  naturalized,  taxed,  or  recognized  as  a  citizen,  cither  by  the  United 
States  or  a  State,  is  not  a  citizen  of  the  United  States,  under  the  four- 
teenth amendment. 

Elk  r.  Wilkins,  112  U.  S.,  94  (approving  McKay  v.  Campbell,  2  Sawyer,  118, 
134  ;  U.  S.  r.  Osborne,  6  Sawyer,  406).    See  App.,  vol.  iii,  $  208. 

The  Cherokee  Nation  of  Indians  have  not  the  right  as  an  equal  sov- 
ereign power  to  impose  taxes  on  persons  trading  among  them  under 
the  authority  of  the  United  States.  Under  treaty  stipulations  with  the 
United  States,  Congress  has  the  sole  and  exclusive  right  of  regulating 
trade  with  them  and  managing  their  affairs  as  shall  be  deemed  proper, 
and  neither  they,  nor  any  other  nation,  can  rightfully  interfere  with  the 
exercise  of  this  right. 
Op.,  645,  Wirt,  1824. 

The  sovereignty  of  the  United  States  over  the  territory  ceded  to  the 
Choctaws  has  been  only  partially  relinquished. 
2  Op.,  693,  Butler,  1834. 

A  white  man,  although  he  may  have  been  adopted  by  Chickasaws  or 
Choctaws,  does  not  become  subject  in  criminal  matters  to  the  jurisdic- 
tion of  the  courts  of  the  Choctaw  Nation. 
7  Op.,  174,  Gushing,  1855. 

But  in  matters  of  civil  jurisdiction  arising  within  the  nation  its  courts 
have  jurisdiction  over  a  white  man  who  has  voluntarily  made  himself 
a  Chickasaw  by  intermarriage  and  exercise  of  all  the  rights  of  a  Chick- 
asaw, and  where  the  question  concerns  property  the  proceeds  of  a 
bead-right  granted  to  him  as  a  Chickasaw. 
7  Op.,  174,  Cushing,  1855. 

Indians  are  not  citizens  of  the  United  States,  but  domestic  subjects, 
and  can  be  naturalized  only  by  special  act  of  Congress  or  by  treaty. 
7  Op.,  746,  Cashing,  1855. 

The  general  laws  of  the  United  States  do  not  apply  to  the  Indians. 

12  Op.,  208,  Stanbery,  1867. 

"  In  a  case  decided  by  the  Supreme  Court  in  184G  it  was  held :  'The 
native  tribes  who  were  found  on  the  American  continent  at  the  time  of 
its  discovery  have  never  been  acknowledged  or  treated  as  independent 
nations  by  the  European  Governments,  nor  regarded  as  the  owners  of 
the  territories  they  respectively  occupied.  On  the  contrary,  the  whole 
532 


CHAP.  VIIT.]  CANNOT    TRANSMIT    TITLE.  [§  209. 

coutiueiit  was  divided  aud  i)arceled  out  and  granted  by  the  Govern- 
ments of  Europe  as  if  it  had  been  vacant  and  unoccupied  lands  and 
the  Indians  continually  held  to  be  and  treated  as  subject  to  their  do- 
minion and  control.  The  United  States  have  maintained  the  doctrines 
upon  this  subject  which  had  been  previously  established  by  other  na- 
tions, and  insisted  upon  the  same  powers  and  dominion  within  their 
territory.  It  is  too  firmly  and  clearly  established  to  admit  of  dispute 
that  the  Indian  tribes  residing  within  the  territorial  limits  of  the  United 
States  are  subject  to  their  authority,  and  where  the  country  occupied 
by  them  is  not  within  the  limits  of  one  of  the  States,  Congress  may  by 
lawi)unish  anyoftense  committed  there,  no  matter  whether  the  offender 
be  a  white  man  or  an  Indian.'  (The  United  States  v.  Eogers,  4  How., 
572.)  And  in  another  case,  in  1855,  the  court  decided  that  *  the  Cher- 
okee country  may  be  considered  a  Territory  of  the  United  States  within 
the  act  of  1812,  empowering  any  person  or  persons  to  whom  letters 
testamentary  or  of  administration  have  been,  or  may  hereafter  be, 
granted  by  the  proper  authorities  in  any  of  tbe  United  States  or  the 
Territories  thereof,  to  maintain  any  suit,  etc.,  in  the  District  of  Columbia. 
In  no  respect  can  it  be  considered  a  foreign  state  or  territory,  as  it  is 
within  our  jurisdiction  and  subject  to  our  laws.'  Maclsey  v.  Coxe,  18 
How.,  104." 

La-svreoce's  Wheaton  (ed.  1863),  70. 

"  There  is  some  analogy  between  the  relation  of  the  native  states  of 
India  to  Great  Britain,  and  that  of  the  Indian  tribes  of  the  United 
States.  '  The  native  states  of  India  are  instances  of  protected  depend- 
ent states  maintaining  the  most  valuable  relations  with  the  British  Gov- 
ernment under  compacts  with  the  East  India  Company.  All  these 
states  acknowledge  the  supremacy  of  the  British  Government,  and  some 
of  them  admit  its  right  to  interfere  so  far  in  their  internal  affairs  that 
the  East  India  Company  have  become  virtually  sovereign  over  them. 
None  of  these,  however,  hold  any  political  intercourse  with  one  another 
or  with  foreign  powers.'    (Twiss,  Law  of  Nations,  i,  27.)" 

Lawrence's  Wheaton,  (cd.  1863),  70,  71. 

(2)  Cannot  transmit  title. 
§  209. 

As  to  title  by  discovery,  see  supra,  $  2. 

"  The  grounds  of  the  claims  of  European  nations  to  dominion  over  the 
Indian  tribes  in  America  have  been  so  frequently,  fully,  and  ably  dis- 
cussed in  the  courts  of  justice  of  the  United  States  that  it  is  unneces- 
sary to  expatiate  on  the  subject.  Tbe  cases  relating  to  it  are  collected 
and  aluminous  abstract  of  them  given  in  Kent's  Commentaries,  vol.  3, 
])p.  300  to  400.  The  following  extract  from  the  opinion  of  Chief-Justice 
>rars]iall  in  the  case  of  Johnson  va.  Mcintosh  is  so  very  apposite  to  the 

5;'.3 


§  209.]  NORTH    AMERICAN    INDIANS.  [CIIAP.  VIII. 

question  rospectiug  the  Mosquito  shore,  and  proceeds  from  so  high  an 
authority  that  it  may  Nvith  propriety  be  quoted  here  : 

'' '  On  the  discovery  of  this  immense  continent,  the  great  nations  of 
Europe  were  eager  to  appropriate  to  themselves  so  much  of  it  as  they 
coukl  respectively  acquire.  Its  vast  extent  offered  an  ample  field  to  the 
ambition  and  enterprise  of  all,  and  the  character  and  religion  of  its  in- 
habitants afforded  an  apology  for  considering  them  as  a  people  over 
whom  the  superior  genius  of  Europe  might  claim  an  ascendency.  The 
potentates  of  the  Old  World  found  no  difficulty  in  convincing  themselves 
that  they  made  ample  compensation  to  the  inhabitants  of  the  New,  by 
bestowing  on  them  civilization  and  Christianity,  in  exchange  for  un- 
limited independence.  But  as  they  were  all  in  pursuit  of  nearly  the  same 
object,  it  was  necessary  in  order  to  avoid  conflicting  settlements  and 
consequent  war  with  each  other  to  establish  a  principle  which  all  should 
acknowledge  as  the  law  by  which  the  right  of  acquisition,  which  they 
all  asserted,  should  be  regulated  as  between  themselves.  This  princi- 
ple was  that  discovery  gave  title  to  the  Government  by  whose  subjects 
or  by  whose  authority  it  was  made  against  all  other  European  Govern- 
ments, which  title  might  be  consummated  by  possession. 

"  '  The  exclusion  of  all  other  Europeans  necessarily  gave  to  the  nation 
making  the  discovery,  the  sole  right  of  acquiring  the  soil  from  the  natives 
and  establishing  settlements  ujion  it.  It  was  a  right  with  which  no- 
Europeans  could  interfere.  It  was  a  right  which  all  asserted  for  them- 
selves and  to  the  assertion  of  which  by  others  all  assented. 

"  'Those  relations  which  were  to  exist  between  the  discoverer  and  the 
natives  were  to  be  regulated  hj  themselves.  The  rights  thus  acquired 
being  exclusive,  no  other  power  could  interpose  between  them.'  See 
also  Jackson  ex  dem.  Sparkman  vs.  Porter,  2  Paincs'  Circuit  Courts  Ee- 
ports,  457." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Squicr,  May  1,  1849.     MSS.  Inst.,  Am.  States. 

See  supra,  $  2. 
As  to  Mosquito  Indian  title,  see  supra,  $  150/,  infra,  $  295. 

Aboriginal  inhabitants  in  a  savage  state  have  not  such  a  title  to  the 
land  where  they  dwell  or  roam  as  entitle  them  to  confer  it  upon  persons 
from  another  country. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Hackett,  June  12,  1873.     MSS.  Dom.  Let. 

The  Indian  inhabitants  of  the  United  States  are  to  be  considered 
merely  as  occupants,  to  be  protected,  indeed,  while  in  peace  in  the  pos- 
session of  their  lands,  but  to  be  deemed  incapable  of  transferring  the 
absolute  title  to  others  independent  of  territorial  sovereignty. 

Johnson  r.  Mclntosli,  8  Wheat.,  543. 

The  United  States  received  from  Great  Britain  by  the  treaty  which 

terminated  the  Revolution  a  ratification  of  prior  title  to  all  the  lands 

within  their  boundaries,  subject  only  to  the  Indian  right  of  occupancy. 

This  is  the  doctrine  asserted  by  the  various  European  nations  that  ac- 

534 


CHAr.  VIII.]  TREATIES    WITtt.  [§210. 

quired  territory  on  this  continent  anterior  to  the  treaty  with  Great 
Britain,  and  is  the  spirit  of  the  several  compacts  made  with  the  Cher- 
okees. 

2  Op.,  321,  Berrien,  1830. 

Grants  made  by  Congress  in  lands  reserved  to  the  Indians  by  treaty 
are  subject  to  the  Indian  right  of  occupancy,  and  can  operate  only  after 
the  extinguishment  of  the  Indian  title. 

3  Op.,  56,  Butler,  1836;  3  Op.,  205,  Butler,  1837. 

On  the  abandonment  of  their  lands  by  Indian  reservees,  under  the 
Creek  treaty  of  1814,  the  title  becomes  immediately  vested  in  the  United 
States  by  operation  of  law. 
3  Op.,  230,  Butler,  1837. 

Indians  have  not  been  conceded  the  national  capacity  to  hold  abso- 
lute title  to  lands,  except  in  cases  specially  provided  for  by  treaty,  as 
in  the  case  of  the  Choctaws  aud  others;  wherefore  the  title  of  the 
Brothertown  Indians  to  the  land  secured  to  them  by  the  treaties  with 
the  Menomonies  is  not  a  fee  simple,  but  only  such  a  right  of  occupancy 
as  was  previously  possessed  by  the  Menomonies  themselves,  subject  to 
the  general  right  of  the  United  States  to  extinguish  it  by  treaty  with 
the  Brothertown  Indians. 

3  Op.,  322,  Butler,  1838. 

The  removal  of  the  Creek  reservees  from  their  reserved  lands,  with- 
out an  intention  of  returning,  is  an  abandonment  which  gives  the  right 
of  possession  and  occupancy  to  the  United  States. 

3  Op.,  389,  Grundy,  1838. 

II.  TREATIES  WITH. 

(1)  Must  be  duly  solemnized. 

§210. 

The  questions  relating  to  this  topic  are  discussed,  mutatis  mutandis^ 
supra,  ^  130  ff. 

An  Indian  treaty  is  as  much  a  law  of  the  land,  when  duly  solemnized, 
as  is  a  treaty  with  a  foreign  power. 

Turner  ».  Mi&s.  Union,  5  McLean,  344. 

When  ratified  in  due  form  it  is  not  competent  for  the  court  to  inquire 
whether  the  tribe  was  properly  represented  by  its  headmen  who  were 
the  parties. 

Fellows  V.  BlackHinitb,  19  How.,  366. 

^Notwithstanding  a  conflicting  State  law,  an  Indian  treaty  operates 
until  rescinded  or  abrogated  by  a  new  treaty,  or  by  Congressional  act, 
or  by  extinguishment  of  the  object  on  which  the  treaty  acted. 
Love  V.  Painnlii'i  ''^1  Ecd.  R«^n.,  755. 

535 


S^211.]  NORTH   AMERICAN   INDIANS.  [CIIAP.  VIII. 

(2)  LllJEltALLY  CONSTnUKI). 

§  211. 

A  treaty  between  the  Uuited  States  and  the  Cherokee  tribe  of  Indians 
concerning  lands  is  the  contract  of  both  parties,  and  its  plain  terms 
cannot  be  controlled  by  the  acts  of  one  of  the  agents  of  the  United 
States. 

Meigs  V.  McClung,  9  Cranch,  11. 

A  question  of  disputed  boundary  may  be  settled  by  the  United  States 
and  an  Indian  tribe,  between  whom  a  previous  treaty  had  been  made, 
which  left  the  boundary  in  some  respects  uncertain;  and  private  rights 
are  bound  thereby. 

Laltimer  v.  Potcet,  14  Pet.,  4. 

Xotwithstanding  the  treaties  of  1838  and  1842,  between  the  Seneca 
ludiaus  and  the  United  States,  by  which  they  agreed  to  remove  west 
of  the  Mississippi,  no  one  can  enforce  their  removal  but  the  United 

States. 

Fellows  r.  Blacksmith,  19  How.,  36G. 

Such  treaties  are  to  be  construed  favorably,  all  other  things  being 
equal,  to  the  Indian  parties. 
Konsas  Indians,  f;  Wall.,  737. 

Like  other  treaties,  they  are  municipally  repealed  by  subsequent 
legislation. 

Cherokee  Tobacco,  11  Wall.,  616;  aff.,  1  Dill.,  204;  supra,  $  138. 

Where  the  right  of  an  Indian  tribe  to  the  possession  and  use  of  cer- 
tain lands,  as  long  as  it  may  choose  to  occupy  the  same,  is  assured  by 
treaty,  a  grant  of  them,  absolutely  or  cimi  onere,  by  Congress,  to  aid  in 
building  a  railroad,  violates  an  express  stipulation;  and  a  grant  in  gen- 
eral terms  of  "land"  cannot  be  construed  to  embrace  them. 

Leavenworth,  Lawrence  and  Galveston  Railroad  Co.  i'.  U.  S.,  92  U.  S.,  733. 

The  act  of  March  3, 1863  (12  Stat.  L.,  772),  to  aid  in  the  construction  of 
certain  raiboads  in  Kansas,  embraces  no  part  of  the  lands  reserved  to 
the  Great  and  Little  Osages  by  the  treaty  of  June  2, 1825  (7  Stat.  L.,  240), 
and  the  treaty  concluded  September  29,  18G5,  and  proclaimed  January 
21, 1807  (14  Stat.  L.,  087),  neither  makes  nor  recognizes  a  grant  of  such 
lands.  The  effect  of  the  treaty  is  simply  to  provide  that  any  right  of 
the  companies  designated  by  the  State  to  build  the  roads  should  not  be 
barred  or  impaired  by  reason  of  the  general  terms  of  the  treaty,  but 
not  to  declare  that  such  rights  existed. 
md. 

It  is  competent  for  the  United  States,  in  the  exercise  of  the  treaty- 
making  power,  to  stipulate,  in  a  treaty  with  an  Indian  tribe,  that,  -within 
536 


CHAP.  VIII.]  TREATIES    WITH.  [§211. 

the  territory  thereby  ceded,  the  hiws  of  the  United  States,  theu  or  there- 
after enacted,  prohibiting  the  introduction  and  sale  of  spirituous  liquors 
in  the  Indian  country,  shall  be  in  full  force  and  effect  until  otherwise 
directed  by  Congress  or  the  President  of  the  United  States.  Such  a 
stipulation  operates  propria  vigore,  and  is  bindiug  upon  the  courts, 
although  the  ceded  territory  is  situate  within  an  organized  county  of  a 
State. 

U.  S.  V.  Forty-three  Gallous  of  Whisky,  &c.,  93  U.  S.,  188. 

The  Seneca  Indians  must  be  protected  in  the  enjoyment  of  exclusive 
possession  of  their  lands  as  defined  and  bounded  in  the  treaty  of  Canan- 
daigua,  until  they  have  voluntarily  relinquished  it. 

1  Op.,  465,  Wirt,  1821. 

By  the  treaty  with  the  Ottawas,  the  United  States  agreed  with  the 
Ottawas  to  pay  to  a  certain  person  a  certain  sum  of  money.  It  was 
held  that  the  money  must  be  paid,  without  requiring  proof  of  the  justice 
of  the  claim. 

2  Op.,  562,  Taney,  1833. 

By  a  treaty  with  the  Miami  Indians,  the  United  States  agreed  to  grant 
to  each  of  certain  i:)ersons  a  section  of  land  out  of  the  territory  ceded 
by  the  treaty.  It  was  advised  that  no  other  parcels  than  those  defined 
could  be  substituted  for  them. 

2  Op.,  563,  Taney,  1833. 

The  Choctaws  have  no  i)ower  to  pronounce  and  execute  sentence  of 
death  upon  the  slave  of  a  white  man  residing  among  them,  their  power 
being  limited  by  treaty  with  the  United  States  to  the  Government  of 
the  Choctaw  Nation  of  red  men  and  their  descendants. 
2  Op.,  693,  Butler,  1834. 

537 


CHAPTER  IX. 

CLAIMS. 

I.    Mode  of  presentation. 

(1)  Homo  claimant  must  make  out  his  case  to  the  Department  by  affidavit 
or  other  proof,  $  213. 
~  (2)  Foreign  claimant  must  appear  through  diplomatic  agency,  $  214. 

II.      WnO  MAY  CLAIM. 

(1)  United  States  citizenship  must  he  shown  to  sustain  claim,  and  such 

citizenship  must  have  existed  when  the  claim  accrued,  §  215. 

(2)  A  citizen  who  has  voluntarily  expatriated  himself  cannot  claim  the 

interposition  of  the  Department,  $  216. 

(3)  Corporations,  $  217. 

III.  Practice  as  to  proof  and  process. 

(1)  Department  cannot  examine  witnesses  under  oath,  $  218. 

(2)  No  peremptory  demand  to  he  made  unless  under  instructions  from 

the  Department,  $  219. 

(3)  Department  has  control  of  case  and  may  arbitrate,  compromise,  or 

withdraw,  $  220. 

(4)  Arbitration  proper  when  Governments  disagree ;  limits  of  arbitration, 

$221. 

(5)  Government  may  resort  to  extreme  measures  to  enforce  payment,  $  222. 

IV.  Claims  based  ox  war. 

(1)  A  sovereign  is  not  ordinarily  responsible  to  alien  residents  for  injuries 

they  receive  on  his  territory  from  belligerent  action,  or  from  in- 
surgents whom  he  could  not  control  or  whom  the  claimant  Govern- 
ment had  recognized  as  belligerent,  $  223. 

(2)  Nor  for  acts  of  legitimate  warfare  waged  by  him  on  his  enemy's  soil, 

5  224. 

(3)  Greytown  bombardment,  $  224a. 

(4)  But  belligerent  is  liable  for  injuries  inflicted  in  violation  of  rules  of 

civilized  warfare,  §  225. 
v.    Claims  based  on  mob  injuries. 

A  Government  is  liable  internationally  for  such  injuries  when  it  could 
have  prevented  them ;   but  when  there  is  a  remedy  given  in  the 
judicial  tribunals,  this  must  be  pursued,  $  226. 
VI.    Claims  based  on  spoliation. 

(1)  Foreign  neutrals  liable  for  breach  of  neutrality,  §  227. 

(2)  Foreign  belligerents  liable  for  abuse  of  belligerency,  $  228. 

(3)  How  far  public  ships  are  liable  for  torts,  §  229. 

VII.    Claims  based  on  denial  or  undtje  discrimination  of  justice. 

(1)  Such  claims  ground  for  interposition,  §  2.30. 

(2)  But  not  mere  national  peculiarities  in  administering  justice,  not  vio- 

lating international  obligations,  §  230a. 
VIII.    Contractual  claims. 

(1)  Not  ordinarily  pressed,  $  231. 

(2)  Exception  where  diplomacy  is  the  only  mode  of  redress,  $  232. 

(3)  Tender  of  good  offices,  ^  233. 

538 


CHAP.  TX.]  MODE    OF    PRESENTATION.  [§  '213. 

IX.    Claims  iOR  real  estate. 

(1)  Title  to  be  sued  for  at  situs,  $  234. 

(2)  Otherwise  as  to  trespasses  and  evictiotrs,  $  235. 
X.    Claims  based  ox  negligence,  §  235a. 

XT.    Liability  fob  prior  Government. 

Governments  liable  for  their  predecessors'  spoliationSj  §  236. 
XII.    Defenses. 

(1)  Part  payment,  $  237. 

(2)  Lis  pendens,  election  of  another  tribunal,  res  adjudicata,  ^  238. 

(3)  Limitation,  $  239. 

(4)  Intermediate  -war  or  settlement,  §  240. 

(5)  Non-exhaustion  of  local  judicial  remedies,  §  241. 

(6)  But  this  does  not  apply  when  there  is  no  local  judiciary,  or  where  the 

judicial  action  is  in  violation  of  international  law,  or  where  the  test 
is  waived,  or  where  there  is  undue  discrimination,  $  242. 

(7)  Culpability  of  claimant,  §  243. 

(8)  No  national  discrimination  as  to  claimant,  $  244. 
XIII.    Practice  as  to  payment,  §  245. 

XrV.    Interest. 

Not  generally  allowable,  $  246. 
XV.    Damages. 

Eemote,  not  allowable,  $  247. 
XVI.    Home  Government's  liability  for  abandoning  claim,  $  248. 
XVII.    Foreign  sovereigns  may  sue  in  Federal  courts,  5  249. 

I.  MODE  OF  PRESENTATION. 

(1)  Home  claimant  must  make  out  his  case  to  the  Department  by  affidavit 

or  other  proof. 

§213. 

"  This  Department  caimot  prefer  any  claim  against  a  foreign  Gov- 
ernment unless  all  the  facts  and  documents  necessary  to  establish  at 
least  a  prima  facie  case  of  its  validity  are  previously  submitted  for  con- 
sideration." 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Eliot,  May  20,  1847.    MSS.  Dom.  Let. 

As  a  basis  of  diplomatic  intervention  in  claims  on  foreign  Govern- 
ments for  redress  or  indemnity,  it  is  necessary  that  there  should  be  a 
l)etition  to  the  Secretary  of  State,  accompanied  by  a  sworn  statement  in 
detail  of  the  injury  sustained,  together  with  such  other  proof  as  can  be 
secured  sustaining  the  allegations  of  the  jjetitions. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Grain,  Feb.  24,  1854.    MSS.  Dom.  Let. 

Unless  irreparable  or  serious  injury  would  follow  from  the  delay,  a 
minister  of  the  United  States  is  not  at  liberty  to  present  to  the  Gov- 
ernment to  which  he  is  commissioned  a  claim  by  a  citizen  of  the  United 
States  without  the  prior  approval  of  his  own  Government. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Bowlin,  Jan.  12, 1856.    MSS.  Inst.,  Colombia. 

"  It  is  not  the  province  of  the  Department  to  designate  the  nature  of 
the  evidence  on  which  claimants  should  substantiate  their  claim  ;  it  is 

5;3U 


§  213.]  CLAIMS.  [chap.  IX. 

to  be  i)resumed,  of  course,  that  the  same  care  will  bo  taken  to  obtain 
the  most  positive  proof  of  wliich  the  case  is  susceptible  as  if  the  claims 
were  to  be  subjected  to  the  scrutiny  of  a  court  of  justice." 

Mr.  Murcy,  Sec.  of  State,  to  Mr.  Sanford,  Mar.  22,  leSG.    MSS.  Doin.  Let. 

The  Department  will  not  apply  to  a  foreign  Government  to  pay  to  a 
citizen  of  the  United  States  damages  for  his  unlawful  arrest  by  such 
Government  when  there  was  a  prima  facie  case  sustaining  such  arrest. 

Mr.  Hale,  Actiug  Sec.  of  State,  to  Mr.  W.  J.  Hale,  July  13, 1872.    MSS.  Dom. 
Let.  Mr.  Fish  to  Mr.  Lazai'us,  Ai)r.  2,  1873 ;  ihid. 

"  A  substantial  observance  of  the  following  rules  by  the  claimant 
will  facilitate  the  examination  of  the  merits  of  the  claim  by  the  Depart- 
ment, and  may  tend  to  promote  its  early  adjustment. 

"  1st.  The  memorial  or  ijetition  should  embody  a  concise  and  plain 
statement  of  the  case,  being  particular  in  regard  to  dates  of  occurrence 
and  in  regard  to  the  official  station,  if  any,  of  the  subjects  or  officers  of 
the  foreign  Government  who  may  have  been  engaged  in  the  acts  com- 
plained of.  The  petition  should  be  attested  by  the  oath  of  the  claim- 
ant or  the  i^erson  representing  the  claimant. 

"  2d.  The  memorial  should  be  suj^ported  by  such  proofs  as  the  claim- 
ant may  be  able  to  furnish.  If  these  consist  of  documents  the  original 
should  be  sent,  and  if  any  are  in  a  foreign  language,  translations  should 
accompany  them  ;  and  if  depositions  of  witnesses  they  must  be  under 
oath,  otherwise  they  will  not  be  considered. 

"  3d.  The  amount  of  the  claim  should  be  distinctly  set  forth,  and  if 
it  consists  of  several  distinct  items,  or  grows  out  of  several  distinct 
transactions,  the  amount  of  each  item  and  the  dates  of  the  various 
occurrences  should  be  given." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Kctcliau),  Feb.  23,  1881.    MSS.  Dom.  Let. 

"  It  is  a  well  settled  rule  in  this  Department  that  no  claim  against  a 
foreign  sovereign  will  be  entertained  unless  sustained  by  affidavits,  or 
by  written  admissions  by  the  sovereign  on  whom  the  claim  was  made. 
It  is  a  rule  in  the  Department  equally  well  settled  that  a  citizen  of  the 
United  States  cannot  claim  its  interposition  to  enforce  a  contract  with  a 
foreign  sovereign,  unless,  on  his  applying  to  that  sovereign  for  redress, 
there  was  either  a  gross  denial  of  justice  or  an  unfair  discrimination 
against  the  claimant  on  the  ground  of  his  nationality." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Jan.  9,  1886.    MSS.  Inst.,  Turkey. 

"  You  are  right  in  asserting  that  this  Department  requires,  as  a  con- 
dition precedent  for  the  presentation  of  a  claim  to  a  foreign  Govern* 
ment  simply  a  prima  facie  case  such  as  would  authorize  a  chancellor  to 
issue  ex  parte  process,  and  that  the  case  is  not  exhaustively  examined 
on  the  merits  until  these  merits  are  contested  by  the  Government  to 
whom  the  claim  is  presented.  You  are  right,  also,  in  assuming  that 
unless  the  claimant's  papers  present  such  a  ^nwja/«cfe  case,  the  De- 
540 


CHAP.  IX.]  MODE    OF    PRESENTATION.  [S^213. 

partment  will  decline  to  present  the  claim.  Ordinarily,  it  should  be 
observed,  it  is  a  prerequisite  to  the  presentation  of  such  a  claim  by  the 
Department,  that  it  should  be  verified  by  aflBdavit  or  adequate  docu- 
mentary proof,  but  this  condition  is  not  insisted  on  when,  on  the  facts 
set  forth  on  the  claimant's  petition,  it  appears  that,  no  matter  how 
complete] J'  these  facts  are  verified,  he  has  not  Si,  iwima  facie  case." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Denby,  Feb.  5, 1886.     MSS.  lust.,  China.     See 
App.,  Tol.  iii,  §  213. 

Circular  in  this  relation  hy  Department  of  State. 

Oitizensof  the  UnitedStates  having  claims  against  foreign  Governments,  not  founded 
on  contract,  in  the  prosecution  of  whicli  they  may  desire  the  assistance  of  the  De- 
partment of  State,  should  forward  to  the  Department  statements  of  the  same,  under 
oath,  accompanied  by  the  proper  proof. 

The  following  rales,  which  are  substantially  those  which  have  been  adopted  by 
commissions  authorized  under  conventions  between  the  United  States  and  foreign 
Governments  for  the  adjustment  of  claims,  are  published  for  the  information  of  citizens 
of  the  United  States  having  claims  against  foreign  Governments,  of  the  character  in- 
dicated in  the  above  notification  ;  and  they  are  advised  to  conform  as  nearly  as  pos- 
sible to  these  rules  in  preparing  and  forwarding  their  papers  to  the  Department  of 
State. 

Each  claimant  should  file  a  memorial,  properly  dated,  setting  forth  minutely  and 
particularly  the  facts  and  circumstances  from  which  the  right  to  prefer  such  claim  is 
derived  by  the  claimant.  This  memorial  should  be  verified  by  his  or  her  oath  or 
affirmation. 

The  memorial  and  all  the  accompanying  papers  should  be  written  upon  foolscap 
paper,  with  a  margin  of  at  least  one  inch  in  width  on  each  side  of  the  page,  as  in  this 
circular,  so  as  to  admit  of  their  being  bound  in  volumes  for  preservation  and  conven- 
ient reference  ;  and  the  pages  should  succeed  each  other  like  those  of  a  book,  and  be 
readable  without  inverting  them. 

When  any  of  the  papers  mentioned  in  ru^e  11  are  known  to  have  beeu  already  fur- 
nished to  the  Department  by  other  claimants,  it  will  be  unnecessary  to  repeat  them  in  a 
subsequent  memorial.  A  particular  description,  with  a  reference  to  the  date  under- 
which  they  were  previously  transmitted,  is  sufficient. 

Nor  is  it  necessary,  when  it  is  alleged  that  several  vessels  have  been  captured  by 
the  same  cruiser,  to  repeat  in  each  memorial  the  circumstances  in  respect  to  the  equip- 
ment, arming,  manning,  flag,  &c.,  of  such  cruiser,  which  are  relied  upon  as  the  evi- 
dence of  the  responsibility  of  a  foreign  Government  for  its  alleged  tortious  acts.  A 
simple  reference  to  and  adoption  of  one  memorial  iu  which  such  facts  have  been  fully 
stated,  will  suffice. 

It  is  proper  that  the  interposition  of  this  Government  with  the  foreign  Government 
against  which  the  claim  is  presented  should  be  requested  in  express  terms,  to  avoid 
a  possible  objection  to  the  jurisdiction  of  a  future  commission  on  the  ground  of  the 
generality  of  the  claim. 

Claims  of  citizens  against  the  Government  of  the  United  States  are  not  generally 
under  the  cognizance  of  this  Department.  They  are  usually  subjects  for  the  consid- 
eration of  some  other  Department,  or  of  the  Court  of  Claims,  or  for  an  appeal  to  Con- 
gress. 

Rules. — In  every  memorial  should  be  set  forth — 

1.  The  amount  of  llio  claim  ;  the  time  when  and  place  where  it  arose;  the  kind  or 
kinds  and  aiiioiint  of  property  lost  or  injured  ;  the  facts  and  circumstances  attending 
the  loss  or  injury  out  of  which  the  claim  arises;  the  principles  and  causes  which  lie 
at  the  foundation  of  the  claim. 

541 


§  213.]  CLAIMS.  [chap.  iX, 

2.  For  aud  in  behalf  of  wbom  the  claim  is  preferred,  giving  christian  and  surname 
of  each  in  full, 

3.  Whether  the  claimant  is  now  a  citizen  of  the  United  States,  and,  if  so,  ^vhethe^  he 
is  a  native  or  naturalized  citizen,  and  where  is  now  his  domicil ;  and  if  he  claims  in 
his  own  right,  then  whether  he  was  a  citizen  when  the  claim  had  its  origin,  aud  where 
was  then  his  domicil ;  and  if  he  claims  in  the  right  of  another,  then  whether  such 
other  was  a  citizen  when  the  claim  had  its  origin,  and  where  was  then  and  where  is 
now  his  domicil ;  and  if,  in  either  case,  the  domicil  of  the  claimant,  at  the  time  the 
claim  had  itsorign,  was  in  any  foreign  country,  then  whether  such  claimant  was  then 
a  subject  of  the  Government  of  such  country,  or  had  taken  any  oath  of  allegiance 
thereto. 

4.  Whether  the  entire  amount  of  the  claim  does  now,  and  did  at  the  time  when  it 
had  its  origin,  belong  solely  and  absolutely  to  the  claimant;  and  if  anj'  other  person  is 
or  has  been  iutecested  therein,  or  in  any  part  thereof,  then  who  is  such  other  person, 
aud  what  is  or  was  the  nature  and  extent  of  his  interest ;  and  how,  when,  and  by 
what  means  and  for  what  considerations  the  transfer  of  rights  or  interests,  if  any  snch 
was  made,  took  place  between  the  parties. 

5.  Whether  the  claimant,  or  any  other  who  may  at  any  time  have  been  entitled  to 
the  amount  claimed,  or  any  part  thereof,  has  ever  received  any,  and  if  any,  what  sum 
of  mouey,  or  other  equivalent  or  indemnification,  for  the  whole  or  any  part  of  the  loss 
or  injury  upon  which  the  claim  is  founded ;  and  if  so,  when  and  from  whom  the  same 
was  received. 

6.  All  testimony  should  be  in  writing,  aud  upon  oath  or  affirmation,  duly  adminis- 
tered, according  to  the  laws  of  the  place  where  the  same  is  taken,  by  a  magistrate  or 
other  person  competent  by  such  laws  to  take  depositions,  having  no  interest  in  the 
claim  to  which  the  testimony  relates,  aud  not  being  the  agent  or  attorney  of  any  per- 
son having  such  interest,  and  it  must  be  certified  by  him  that  such  is  the  case.  The 
credibility  of  the  aflSant  or  deponent,  if  known  to  such  magistrate,  or  other  person 
authorized  to  take  such  testimony,  should  be  certified  by  him;  and  if  not  known, 
should  be  certified  on  the  same  paper  upon  oath  by  some  other  person  known  to  such 
magistrate,  having  no  interest  in  such  claim,  aud  not  being  the  agent  or  attorney  of 
any  person  having  such  interest,  whose  credibility  must  be  certified  by  such  magis- 
trate. The  deposition  should  be  reduced  to  writing  by  the  person  taking  the  same, 
or  by  some  person  in  his  presence  having  no  interest,  and  not  being  the  agent  or  at- 
torney of  any  person  having  an  interest,  in  the  claim,  and  should  be  carefully  read  to 
the  deponent  by  the  magistrate  before  being  signed  by  hiiu,  and  this  should  be  cer- 
tified. 

7.  Depositions  taken  in  any  city,  port,  or  place  without  the  limits  of  the  United 
States,  may  be  taken  before  any  consul  or  other  public  civil  officer  of  the  United 
States  resident  in  such  city,  port,  or  place,  having  no  interest,  and  not  being  agent 
or  attorney  of  any  person  having  an  interest,  in  the  claim  to  which  the  testimony  so 
taken  relates.  In  all  other  cases,  whether  in  the  United  States  or  in  any  foreign 
l)lace,  the  right  of  the  person  taking  the  same  to  administer  oaths  by  the  laws  of  the 
place  must  be  verified. 

8.  Every  affiant  or  deponent  should  state  iu  his  deposition  his  age,  place  of  birth, 
residence,  and  occupation,  and  where  was  his  residence  and  what  was  his  occupation 
at  the  time  the  events  took  place  in  regard  to  which  he  deposes,  and  must  also  state 
if  he  have  any,  and  if  any,  what  interest,  in  the  claim  to  support  which  his  testimony 
is  taken,  and  if  he  have  any  contingent  interest  in  the  same,  to  what  extent,  and  upon 
the  happening  of  what  event,  he  will  be  entitled  to  receive  any  part  of  the  sum  which 
may  be  awarded.  He  should  also  state  whether  he  be  the  agent  or  attorney  of  the 
claimant,  or  of  any  person  having  an  interest  in  the  claim. 

9.  Original  papers  exhibited  iu  proof  should  be  verified  as  originals  by  the  oath  of 
a  witness,  whose  credibility  must  be  certified  as  required  in  the  sixth  of  these  rules; 

543 


CHAP.  IX.]  MODE    OF    PEESENTATION.  [§214. 

but  vrhen  the  fact  is  within  the  exclusive  knowledge  of  the  claimant,  it  maybe  veri- 
fied by  his  own  oath  or  affirmation.  Papers  in  the  handwriting  of  any  one  who  is  de- 
ceased, or  whose  residence  is  unknown  to  the  claimant,  may  be  verified  by  proof  of 
handwriting,  and  of  the  death  of  the  party,  or  his  removal  to  places  unknown. 

10.  All  testimony  taken  in  any  foreign  language  and  all  papers  and  documents  in 
any  foreign  language,  which  may  be  exhibited  in  proof  should  be  accompanied  by  a 
translation  of  the  same  into  the  English  language. 

11.  When  the  claim  arises  from  the  seizure  or  loss  of  any  ship  or  vessel  or  the  cargo 
of  any  ship  or  vessel,  a  certified  copy  of  the  enrollment  or  registry  of  such  ship  or 
vessel  should  be  produced  together  with  the  original  clearance  manifests,  and  all  other 
papers  and  documents  required  by  the  laws  of  the  United  States  which  she  possessed 
on  her  last  voyage  from  the  United  States,  when  the  same  are  in  the  possession  of  the 
clairaaut  or  can  be  obtained  by  him,  and  when  not,  certified  copies  of  the  same  should 
be  produced,  together  with  his  oath  or  affirmation  that  the  originals  are  not  in  his 
possession  and  cannot  be  obtained  by  him. 

12.  In  all  cases  where  property  of  any  description  for  the  seizure  or  loss  of  which  a 
claim  has  been  presented,  was  insured  at  the  time  of  such  seizure  or  loss,  the  original 
policy  of  insurance,  or  a  certified  copy  thereof,  should  be  produced. 

13.  If  the  claimant  be  a  naturalized  citizen  of  the  United  States  a  copy  of  the  record 
of  his  naturalization  duly  certified  should  be  produced. 

14.  Documentary  proof  should  be  authenticated  by  proper  certificates  or  by  the 
oath  of  a  witness. 

15.  If  the  claimant  shall  have  employed  counsel  the  name  of  such  counsel  should, 
with  his  address,  be  signed  to  the  memorial  and  entered  upon  the  record,  so  that  all 
necessary  notices  may  be  addressed  to  such  counsel  or  agent  respecting  the  case. 

See  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Buck,  Oct.  27,  1885.     MSS.  Inst.,  For. 
Eel.,  1885. 

A  report  from  Mr.  Fisli,  Secretary  of  State,  of  December  12,  1874, 
giving  returns  from  a  series  of  foreign  ministers  on  the  subject  of  claims 
against  Governments,  is  in  House  Eep.  No.  134,  43d  Cong.,  2d  sess. 
In  the  same  report  is  given  an  argument  on  behalf  of  the  bill  for  refer- 
ence of  international  claims  by  the  Secretary  of  State  to  the  Court  of 
Claims. 

(2)  Foreign  claimant  must  appear  through  diplomatic  agency. 

§214. 

A  claim  by  a  French  citizen  against  the  United  States,  when  presented 
to  the  Department  of  State^  must  come  through  the  diplomatic  repre- 
sentation of  France. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Fentenhime,  Sept.  23, 1868.     MSS.  Dom.  Let. 

"  The  practice  of  this  Government  is  only  to  consider  the  claims  of  for- 
eign subjects  when  they  are  presented  by  the  diplomatic  representative 
of  the  country  to  which  they  belong." 

Mr.  Fish,  Sec.  of  State,  to  Messrs.  Coudert  Bros.,  Apr.  21,  18G9;  ibid. 

A  claim  ''on  behalf  of  foreign  subjects  of  a  foreign  Government  against 
the  United  States  iSj  under  tlie  established  rule  of  tliis  Government,  not 

643 


§  215.]  CLAIMS.  [chap.  IX. 

entitled  to  receive  cousideratioii  unless  a  demand  is  made  by  the  Gov- 
ernment of  the  country  of  which  the  claimant  is  a  subject  or  a  citizen." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Sypber,  Apr.  3,  1883.     MSS.  Dom. 
Let. 

"  International  law  requires  complaints  on  behalf  of  foreigners  to  come 
through  their  own  Government." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Hildrup,  July  2,  1884.     MSS.  Dom. 
Let. 

A  citizen  of  one  nation,  wronged  by  the  conduct  of  another  nation, 
must  seek  redress  through  his  own  Government.  His  Government  must 
assume  the  responsibility  of  presenting  his  claim,  or  it  need  not  be 
considered. 

U.  S.  V.  Diekelman,  92  U.  S.,  520. 

That  diplomatic  agents  are  not  to  be  called  on  to  tate  cbarge  of  private  claims, 
see  supra,  $  99. 

II.   WHO  MAY  CLAIM. 

(1)  United  States  citizenship  must  be  shown  to  sustain  claim,  and  such  citi- 
zenship MUST  HA"VT5  EXISTED  WHEN  THE  CLAIM  ACCRUED, 

§  215. 

As  to  proof  of  citizenship,  see  $$  189^. 

As  to  abandonment  of  citizenship,  supra,  $$  178,  190. 

As  to  German  treaty,  see  supra,  $$  149,  173^. 

An  injury  done  to  a  claimant  before  he  became  a  citizen  of  the  United 
States  cannot  be  the  subject  of  diplomatic  intervention  by  the  Depart- 
ment. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Ujhezi,  Aug.  26,  1856.     MSS.  Dom.  Let. 

"  The  right  to  the  protection  of  this  Government  may  be  acquired  by 
birth,  by  naturalization,  or  in  some  cases  and  for  some  purposes  by  domi- 
cil  in  the  United  States.  No  other  mode  occurs  to  me,  nor  do  I  now 
perceive  the  authority  of  an  oflQcer  of  this  Government,  except  in  virtue 
of  a  treaty,  or  other  positive  legislation  to  bring  a  new  subject  within  the 
sphere  of  its  obligations.  Least  of  all  can  I  discern  any  faculty  in  a 
private  citizen  to  spread  the  protection  of  his  Government  over  a  third 
person  by  adopting  him  as  partner  in  a  commercial  establishment  in 
foreign  parts." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Do  Long,  Sept.  19,  1871.     MSS.  Inst.,  Japan. 

"It  would  be  a  monstrous  doctrine  which  this  Government  would  not 
tolerate  for  a  moment,  that  a  citizen  of  the  United  States,  who  might 
deem  himself  injured  by  the  authorities  of  the  United  States  or  of  any 
State,  could,  by  transferring  his  allegiance  to  another  power,  confer 


CHAP.  IX.]  WHO    MAY    CLAIM.  [^  215. 

upon  these  i)owers  the  right  to  inquire  into  the  legality  of  the  proceed- 
ings by  which  he  may  have  been  injured  while  a  citizen." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bacliiller,  Apr.  8,  1874.    MSS.  Dom.  Let.     See 
further  rulings  to  this  effect,  infra,  §  231. 

Claims  maturing  before  citizenship  are  not  subjects  of  interposition, 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sayler,  May  12,  1876.     MSS.  Dora.  Let. 

"  An  assignment  of  a  claim  by  a  foreigner,  or  another  Government, 
to  a  citizen  of  the  United  States,  even  if  such  claim  be  founded  in  tort, 
is  not  conceived  to  impose  on  this  Government  any  obligation  to  inter- 
fere in  behalf  of  such  citizen,  in  respect  of  the  Government  against 
which  the  complaint  is  made.  This  rule,  however,  is  especially  appli- 
cable in  matters  of  contract  between  a  foreigner  and  another  Govern- 
ment, or  where  a  citizen  of  the  United  States  becomes  the  assignee  of 
the  contract." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Hodgskin,  Oct.  25,  1877.     MSS.  Dom.  Let. 
See  same  to  same,  Dec.  27, 1877 ;  ibid. 

Under  the  agreement  of  1870-'71  between  the  United  States  and 
Spain,  "  the  Spanish  Government  may  traverse  the  allegation  of  Amer- 
ican citizenship,  and  thereupon  competent  and  sufficient  proof  thereof 
will  be  required."  This  agreement,  which  is  to  be  collected  from  an 
exchange  of  notes,  and  "  was  not  a  treaty  or  convention  subjected  to 
the  ratification  of  the  Senate  and  the  approval  of  the  President,  but  an 
agreement  between  the  secretary  of  foreign  affairs  of  Spain,  and  the 
Secretary  of  State  of  the  United  States,"  which  merely  permits  Spain  to 
traverse  the  fact  of  naturalization,  and  does  not  permit  her  to  go  behind 
the  certificate  of  naturalization  and  disprove  the  fact  of  the  five  years' 
residence. 

Mr,  Blaine,  Sec.  of  State,  to^Mr.  Hamlin,  Dec.  6.  1881.     MSS.  Inst.,  Spain.     See 

Mr.  Frelinghuysen,  See.  of  State,  to  Mr.  Foster,  Mar.  25,  1884 ;  ibid. 
As  to  impeaching  naturalization,  see  supra,  $  174a. 

"  The  position  that  the  claimant  is  not  entitled  to  redress,  because, 
though  the  confiscation  and  appropriation  of  the  proceeds  of  the  estate 
took  place  after  he  became  a  citizen  of  the  United  States,  the  embargo  was 
laid  before  that  citizenship  was  perfected,  cannot  be  maintained.  Both 
by  the  Eoman  and  the  English  common  law,  it  is  an  established  prin- 
ciple (as  is  more  fully  illustrated  in  the  report  of  the  solicitor,  of  which 
I  inclose  a  copy)  that  where  an  injurious  procedure  is  put  in  motion  in 
such  a  way  as  to  have  a  continuous  effect,  liability  for  the  effect  is  not 
l)arrcd  by  the  circumstance  that  when  the  procedure  was  started,  no 
liability  could  be  maintained.  And  in  this  case,  while  the  original  em- 
bargo was  laid  before  the  claimant's  citizenship  was  perfected,  it  is 
otherwise  with  the  confiscation  and  subsequent  enormous  appropria- 
tion of  the  revenues  of  tlic  estates.     These  were  subsequent  to  the  per- 

S.  Mis.  h;-_'— VOL.  II :i5  545 


§  216.]  CLAIMS.  [chap.  IX. 

fection  of  Mr.  Mora's  citizenship,  and  aside  from  the  point  above  given 
the  Spanish  Government  is  liable  for  them,  as  for  distinct  acts  of  in- 
jury." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Curry,  Jan.  22,  1886.    MSS.  Inst.,  Spain. 

"  In  the  first  place,  the  claim  is  for  remuneration  for  losses  incurred 
in  an  investment  purely  speculative,  in  purchasing  what  remained  of 
the  wreck  of  a  British  vessel.  The  purchase  by  the  petitioner  was  on 
June  14,  1885,  he  no  doubt  sui)posing  at  the  time  that  the  vessel  was  in 
a  condition  which  made  the  purchase  on  his  part  an  operation  likely  to 
turn  out  very  advantageously  to  him.  It  appeared,  however,  that  the 
day  before  the  purchase  the  vessel  had  been  gutted  by  Chinese  maraud- 
ers, who,  it  is  alleged,  had  access  to  the  vessel  through  the  neglect  of  the 
Chinese  Government.  Now,  supposing  that  such  neglect  imposed  on 
the  Chinese  Government  a  liability  to  make  good  to  the  owners  of  the 
vessel  the  losses  thereby  sustained  by  them,  which,  however,  we  have  no 
reason  on  the  fiicts  to  assume,  yet  we  must  recollect  that  the  petitioner 
bought  the  vessel  as  she  was  at  the  time  of  purchase  and  can  only 
claim  for  damages  subsequently  accruing. 

"In  the  second  place,  even  assuming  that  the  owners  had  a  claim 
against  the  Chinese  Government,  and  that  this  claim  passed  to  the  pe- 
titioner, yet  it  is  a  settled  rule  in  this  Department  that  a  claim  which 
the  Department  cannot  take  cognizance  of  in  its  inception  because  of 
the  alienage  of  the  creditor,  is  not  brought  within  the  cognizance  of  the 
Department  by  its  assignment  to  a  citizen  of  the  United  States." 
Mr.  Bayard,  Sec.  of  State,  to  Mr.  Denby,  Feb.  5,  1886.   MSS.  Inst.,  China. 

"  Subsequent  naturalization  does  not  alter  the  international  status  of 
a  claim  which  accrued  before  naturalization." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Golding,  Apr.  30,  1886.    MSS.  Dom.  Let. 
On  the  subject  of  tlieimpeacbability  of  certificates  of  naturalization,  see  8upra, 

§  174a. 
As  to  condition  of  matriculation,  see  supra,  §  172a. 

(2)   A  CITIZEN   WHO   HAS  VOLUNTARILY  EXPATRIATED  HIMSELF   CANNOT  CLAIM  THE 
INTERPOSITION  OP  THE  DEPARTMENT. 

§216. 

The  rulings  on  this  topic  are  collected  supra,  §  190.     See  also  supra,  ^  1T5. 

"  Lord  Castlereagh  distinctly  said  that  the  grounds  on  which  these 
two  subjects  (Arbuthnot  and  Ambrister)  had  been  considered  by  the 
Cabinet  as  having  forfeited  the  lights  of  protection  from  their  Govern- 
ment were,  that  they  had  identified  themselves,  in  i)ait  at  least,  with 
the  Indians,  by  going  amongst  them  with  other  purposes  than  tho.se  of 
innocent  trade  ;  by  sharing  in  their  sympathies  too  actively,  when  they 
were  on  the  eve  of  hostilities  with  the  United  States  ;  by  feeding  their 
complaints  ;  by  imparting  to  them  counsel  |  by  heightening  their  resent- 

546 


CHAP.  IX.]       PRACTICE  AS  TO  PROOF  AND  PROCESS.        [§§  217,  218. 

ments,  and  thus  at  all  events  increasing  the  predispositions  which  they 
found  existing  to  the  war,  if  they  did  not  originally  provoke  it." 

Mr.  Kusli,  minister  at  London,  to  Mr.  Adams,  Sec.  of  State,  Jan.  25,  1819.     MSS. 

Dispatches,  Gr.  Brit. 
As  to  Arbnthnot  and  Ambrister,  see  further,  $$  190,243,  348a. 

(3)  CORPORATIOXS. 

§217. 

"  When  a  corporation  has  been  injured  by  a  tort  or  a  breach  of  a 
contract,  or  has  any  right  of  action,  legal  or  equitable,  against  a  party, 
it  seems  clear  that  an  individual  shareholder  cannot  prosecute  that 
cause  of  action  because  the  corporation  fails  or  refuses  to  do  so. 

"  Redress  must  be  sought  through  the  board  of  directors  of  the  com- 
pany, or  by  vote  of  the  stockholders,  or  by  other  remedies  provided  by 
the  charter,  or  by  the  laws  of  the  company." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Phelps,  Dec.  C,  1884.  MSS.  Inst., 
Peru. 

But  when  individual  shareholders,  citizens  of  the  United  States 
abroad,  are  denied  justice  in  foreign  courts,  this  Government  may  inter- 
vene.    Infra.  §  230. 

As  to  the  right  of  United  States  stockholders  in  a  foreign  corpora- 
tion to  claim  the  interposition  of  the  United  States  in  favor  of  a  claim 
for  injury  sustained  from  a  foreign  Government,  see  instructions  of  Mr. 
Seward,  Sec.  of  State,  to  Mr.  Burton,  Apr.  27,  1866.  MSS.  Inst., 
Colombia. 

That  foreign  corporations  are  presumed  to  be  aliens,  see  supra,  §  207. 

III.  PRACTICE  AS  TO  PROOF  AND  PROCESS. 

(I)  Department  canxot  examine  witnesses  under  oath. 

§  218. 

"  The  Executive  Government  is  not  furnished  with  the  means  of  in- 
stituting and  i)ursuing  methods  of  investigation  which  can  coerce  the 
production  of  evidence  or  compel  the  examination  of  parties  and  wit- 
nesses. The  authority  for  such  an  investigation  must  proceed  from 
Congress." 

Mr.  Seward,  Acting  Sec.  of  State,  to  Mr.  Zamacona,  Aug.  20, 1879.  MSS.  Notes, 
Mcx. 

It  can,  however,  determine  as  to  the  presentation  of  a  case  to  a  for- 
eign sovereign  on  aflidavits  and  other  proof,  and,  when  negotiating  with 
a  foreign  Government  as  to  the  compromise  of  a  claim,  may  examine 
the  whole  case  presented,  whether  on  affidavits,  documents,  or  oral  ad- 
missions. 

See  supra,  $  213. 

As  to  letters  to  Mr.  Broadlicad,  in  reference  to  nii.ssion,  in  188'),  in  respect  to 
French  Bpoliation  docunicnts,  see  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Broad- 
head,  April  9,  188.J,  and  subsequent  dates.  MSS.  Notes,  Special  Missions. 
Mr.  Bayard  to  Mr.  Tuck,  Nov.  10,  1885;  ibid. 

r»47 


§  219.]  CLAIMS.  [CHAr.  IX. 

Whenever  the  law  makes  it  tlie  duty  of  an  officer  to  examine,  adjust, 
and  settle  claims  against  the  Government,  authority  is  impliedly  given 
to  him  to  require  such  claims  to  be  supported  by  the  oaths  of  witnesses 
where  the  facts  necessary  to  establish  them  rest  on  testimony. 

14  Op.,  410,  Williams,  1874. 

The  act  of  1871  (10  Stat.,  L.  412 ;  Rev.  Stat.  L.,  §  184)  assumes  the  exist- 
ence of  authority  in  the  heads  of  Departments  and  bureaus  to  require 
oaths  in  cases  of  claims  against  the  Government,  and  provides  them 
with  a  very  efficient  means  of  enforcing  it. 
Ibid. 

TLo  records  of  an  Executive  Department  need  not  be  produced  in 
evidence  in  court,  but  their  contents  may  be  shown  by  authenticated 
copies. 

Nock's  case,  2  C.  Cls.,  451. 

For  argument  in  favor  of  the  establisLmcnt  of  a  "Court  of  Alien  Claims,"  see 

letter  of  Mr.  Fish,  Sec.  of  State,  to  Mr.  Lawrence,  of  House  Committee  of 

Foreign  Affairs,  Feb.  27,  1874.     MSS.  Report  Book. 

(2)    XO    PERE.MPTORY  DEMAND    TO    BE    MADE    UNLESS    UNDER    INSTRUCTIONS    FROM 

THE  Department. 

§  219. 

"No  diplomatic  agent  of  this  Government  is  authorized,  without 
instructions  to  that  effect,  to  use  any  other  means  than  respectful 
argument  or  persuasion,  orally  or  in  writing,  for  the  purpose  of  induc- 
ing a  foreign  Government  to  adjust  claims  of  citizens  of  the  United 
States;  nor  is  he  authorized  to  use  threatening  language  for  such  a 
purpose  without  express  instructions.  No  such  agent  ought,  without 
similar  instructions,  to  interfere  officially  in  a  case  of  an  alleged  breach 
by  a  foreign  Government  of  a  contract  with  citizens  of  the  United 
States,  and  it  is  apprehended  that  it  would  at  least  be  difficult  to  find 
an  instance  where  such  an  instruction  has  been  given  by  this  Depart- 
ment. The  reason  for  this  is  obvious.  It  does  not  comport  with  the 
dignity  of  any  Government  to  make  a  demand  upon  anotlier  which 
might  not  ultimately,  on  its  face,  warrant  a  resort  to  force  for  the  pur- 
pose of  compelling  a  compliance  with  it.  Such  a  course  cannot,  under 
this  Government,  be  adopted  without  authority  from  Congress,  and  it 
is  almost  impossible  to  imagine  anj"  contract  or  any  circumstances 
attending  the  infraction  of  one  by  a  foreign  Government  which  would 
induce  Congress  to  confer  such  an  authority  upon  the  President." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Clay,  May  24,  1^55.    MSS.  lust.,  Peru. 

As  to  limits  of  authority  of  (lii)]omatic  representative,  see  Mr.  Blaine,  Sec.  of 

State,  to  Mr.  Hurlbut,  Dec.  3,  18S1.     MSS.  Inst.,  Peru;  For.  Rel.,  1881. 
As  to  discretionary  power  of  the  Government  as  to  such  claims,  see  infra,  $  248. 

548 


CHAP.  IX.]  DEPARTMENT    TIA.S    CONTROL    OP    CASE.  [§  220. 

(3)  Departmext  has  coxtkoi.  oi''  case,  and  may  arbitrate,  compromise,  or 

"WITHDRAW. 

§220. 

"It  is  essential  to  the  dignity  of  a  State  that  it  should  consult  its 
own  convenience  in  preferring  complaints  of  this  character.  This  by 
no  means  implies  a  necessity  for  trenching  upon  the  just  prerogatives 
of  the  debtor  Government.  On  the  contrary,  the  delay  may,  and  often 
does,  spring  principally  from  a  regard  to  the  circumstances  of  the 
debtor  Government  itself" 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Van  Aleu,  July  10,  ld49.   MSS.  Inst.,  Ecuador. 

"Mr.  Carvallo  appears  to  think  that  the  Government  of  the  United 
States,  having  made  this  claim  a  public  question  between  itself  and 
the  Government  of  Chili,  ought  not  to  be  influenced  by  the  opinions 
and  wishes  of  the  claimants,  as  to  the  course  to  be  pursued  in  settling 
it.  But  while  the  Government  of  the  United  States  no  doubt  ought  to 
reserve,  and  certainly  will  reserve  to  itself  the  right  of  pursuing  such  a 
course  as  a  wise  regard  to  ihe  public  interests  requires,  yet  having 
originally  taken  up  the  subject  at  the  instance  of  the  claimants,  and  for 
their  benefit,  it  would  be  altogether  inexpedient  to  pursue  it,  without 
the  attemj)t  at  least  to  obtain  their  consent  beforehand  to  the  measures 
adopted.  A  contrary  course  would  be  imprudent  in  itself,  and  might 
lay  the  foundations  for  an  onerous  demand  upon  Congress.  The  high 
character  and  unquestioned  probity  of  the  i)rincipal  claimant  makes 
this  course,  which  would  always  be  that  of  prudence,  almost  incumbent 
on  this  DepartmcDt  upon  the  present  occasion." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Carvallo,  Feb.  23,  1853.    MSS.  Notes,  Chili. 

"  There  is  an  important  misapprehension  in  Mr.  Carvallo's  note  which 
it  is  necessary  to  correct.  The  undersigned  has  never  said  that  it  was 
'indispensable  to  obtain  the  consent  of  the  claimants  in  order  to  make 
a  convention;'  but  that  it  was  inexpedient  to  take  an  important  step 
without  attempting  at  least  to  obtain  their  consent;  and  this  remark 
was  qualified  by  saying  that  the  Government  of  the  United  States 
reserved  to  themselves  the  right  of  pursuing  such  a  course  as  was 
required  by  a  wise  regard  to  the  public  interests." 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Carvallo,  Mar.  3,  1853.     MSS.  Notes,  Chili. 

The  Department  will  not  present  to  a  foreign  Government  claims  for 
damages  which,  though  based  ona  wrong  actually  done,  are  speculative 
and  exorbitant  in  amount. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Munro,  Jan.  10,  185G.     MSS.  Dom.  Let. 

"Nations  cannot  afford  to  have  the  intercourse  which  the  interests  of 
their  citizens  require  to  bo  kept  open,  subjected  to  the  annoyances  and 
risks  which  would  rcHult  from  the;  adniiHsioli  of  fraud  or  duplicity  into 
Huch  intercourse.     It  has  therefore  become  a  usage,  having  lln>  anlliority 

549 


§  220.]  CLAIMS.  [chap.  IX'. 

of  a  principle,  iu  the  coirespoudeuce  between  enlightened  Governments, 
in  relation  to  the  claims  of  citizens  or  subjects,  that  any  deception 
practiced  by  a  claimant  upon  his  own  Government  in  regard  to  a  con- 
troversy with  a  foreign  Government,  for  the  purpose  of  enhancing  his 
claim,  or  influencing  the  proceedings  of  his  Government,  forfeits  all  title 
of  the  party  attempting  such  deception  to  the  protection  and  aid  of  his 
Government  in  the  controversy  in  question,  because  an  honorable  Gov- 
ernment cannot  consent  to  complicate  itself  in  a  matter  iu  which  it  has 
itself  been  made  or  attempted  to  be  made  the  victim  of  a  fraud,  for  the 
benefit  of  the  dishonest  party." 

Mr.  Seward,  Sec.  of  State,  to  Lord  Lyons,  May  30, 1662.     MSS.  Notes,  Gr.  Brit- 

"  Mr.  Dalla  Costa,  the  Venezuelan  minister,  called  upon  me  on  the 
27th  ultimo,  and  it  may  be  important  that  you  be  advised  of  the  purport 
of  the  conversation.  *  ♦  ♦  He  then  said  that  President  Blanco 
was  very  much  disturbed  by  the  language  of  the  President's  messages 
to  Cono^ress  on  the  subject  of  the  claims  against  Venezuela. 

"  I  eiipressed  surprise,  as  the  laugnage  of  the  President  had,  in  my 
opinion,  been  very  moderate  considering  the  conduct  of  Venezuela;  and 
that  unless  a  different  course  was  pursued  by  Venezuela  I  thought  ho 
might  expect  muc!^  more  decided  language,  if  not  anticipated  by  action 
on  the  part  of  the  President  before  the  nex  ..  Congress  should  adjourn. 
That  the  United  States  felt  deeply  aggrieved  by  the  course  of  Venezuela 
in  refusing  compliance  with  the  obligations  of  the  treaty,  and  with  the 

awards  of  the  arbitrators  to  which  the  claims  had  been  solemnly  referred. 

******* 

"That  if  a  state,  after  having  submitted  a  controversy  regarding 
claims  and  debts  due  to  individuals,  to  arbitration,  whether  by  another 
state  or  by  a  commission,  refuses  to  pay  the  award,  it  loses  credit  and 
leaves  no  alternative  with  other  powers  than  that  of  refusing  intercourse, 
or  of  an  ultimate  resort  to  war."    *     *     * 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Eussell,  June  4, 1875.    MSS.  Inst.,  Venez. ;  For. 
Eel.,  1875.     See  supra,  §  165rt. 

"  The  diplomatic  abandonment  of  the  claims  by  their  own  Govern- 
ment, especially  if  accompanied  by  the  characterization  contained  in 
the  proposed  preamble,  could  not  fail  to  prove  a  serious  obstacle  to  the 
success  of  any  efforts  which  the  parties,  whose  claims  have  heretofore 
been  presented,  might  make  to  secure  redress  through  the  judical  tri- 
bunals, a  source  from  which,  under  the  most  favorable  circumstances, 
the  claimants  would  seem  to  have  little  to  hope  for." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Logan,  Dec.  20,  1875.    MSS.  Inst.,  Chili. 

"  Much  delay  (consequent  upon  accusations  of  fraud  in  some  of  the 
awards)  has  occurred  in  respect  to  the  distribution  of  the  limited 
amounts  received  from  Venezuela  under  the  treaty  of  April  25,  186G, 
applicable  to  the  awards  of  the  joint  commission  created  by  that  treaty. 
So  long  as  these  matters  are  pending  in  Congress  the  Executive  cannot 
550 


ClUr.  IX.J  DEPARTMENT    HAS    CONTROL    OF    CASE.  [§  220. 

assume  either  to  pass  upon  the  questious  presented,  or  to  distribute  the 
fuud  received.  It  is  emiuently  desirable  that  definite  legishitive  action 
should  be  taken,  either  affirming  the  awards  to  be  final,  or  providing 
some  method  for  re-examination  of  the  claims.  Our  relations  with  the 
Republics  of  Central  and  South  America,  and  with  the  Empire  of  Brazil, 
have  continued  without  serious  change,  furtlier  than  the  temporary  in- 
terruption of  diplomatic  intercourse  with  Venezuela  and  with  Nica- 
ragua. Amicable  relations  have  already  been  fully  restored  with  Ven- 
ezuela, and  it  is  not  doubted  that  all  grounds  of  misunderstanding  with 
Nicaragua  will  speedil}'  be  removed.  From  all  these  countries  there 
are  favorable  indications  of  a  disposition  on  the  part  of  their  Govern- 
ments and  people  to  reciprocate  our  efforts  in  the  direction  of  increased 
commercial  intercourse." 

President  Hayes,  First  Annual  Message,  1877.     See  supra,  $  165a. 

The  Government  of  the  United  States  has  control  over  all  awards 
made  to  citizens  of  the  United  States  through  the  agency  of  interna- 
tional commissions,  and  may  take  such  action  in  relation  thereto, 
when  they  are  impeached,  as  may  be  most  consistent  with  national 
honor  and  duty. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Zamacona,  Aug.  20,  1879.  MSS.  Notes,  Mex. 
See  Mr.  Evarts  to  Mr.  Navarro,  Aug.  4,  1880 ;  ibid. 

As  to  effect  of  international  arbitration,  see  infra,  $$  221,316. 
As  to  Venezuela  claims,  tlie  following  documents  may  be  consulted : 

Amount  of  money  in  Department  of  State  on  account  of  awards.  President 
Grant's  message  of  May  19,  1876.     Senate  Ex.  Doc.  66,  44tli  Cong.,  Ist.  sess. 

Review  of  the  action  of  the  commissioners  and  of  the  umpire.  Fraudulent  char- 
acter of  the  claims  awarded  by  the  commission.  Reviews  the  action  of 
Congress  with  respect  to  the  commission.  Evidence  taken  before  the  com- 
mittee, and  correspondence  between  United  States  and  Venezuela.  List 
of  awards  and  of  persons  to  whom  certificates  were  issued.  House  Rep. 
787,  44th  Cong.,  1st  sess. 

President  Hayes's  message,  January  10,  1878.  House  Ex.  Doc.  30,  45th  Cong., 
2d  sess. 

Testimony  taken  by  Committee  on  Foreign  Affairs.  House  Mis.  Doc.  30,  45th 
Cong.,  2d  sess. ;  House  Miss.  Doc.  11,  45th  Cong.,  2d  sess. 

Report  of  Committee  on  Foreign  Affairs.     House  Rep.  702,  45th  Cong.,  2d  scsa. 

Majority  report.     House  Rep.  803,  45ih  Cong.,  2d  sess.     Part  II,  Minority  report. 

Statement  of  the  moneys  received  and  disbursed.  Correspondence.  Subject  of 
compelling  Venezuela  to  pay  the  balance  due  referred  to  Congress.  Presi* 
dent  Hayes'  message  of  March  29,  1880.  Senate  Ex.  Doc.  121,  46th  Cong., 
2d  sess. 

Claim  of  Bealcs,  Nobles  &  Garrison  against  Venezuela.  Papers  in  the  case, 
including  tlie  contract,  evidence,  aSidavits,  proofs,  and  decision  of  the 
commission  and  umpire,  transmitted  May  13, 1880.  House  Mis.  Doc.  42,  46th 
Cong.,  2d  sess. 

Report  adverse  to  their  submission  to  a  new  commission,  but  in  favor  of  tlieir 
submission  to  the  Court  of  Claims.     House  Rep.  327,  46tli  Coug.,  3d  sess. 

Report  of  Coriiniitteo  on  Foreign  Relations,  that  the  Court  of  Claims  cannot  bo 
clothed  with  power  to  annul  (he  action  of  the  Venezuela  Conunission,  bnt) 
that  Secretary  of  State  has  full  authority  to  dirttributo  said  awards.  SonatO 
Rep.  311,  47th  Cong.,   Ist  sees. 

561 


^  220.]  CLAIMS.  [chap.  IX. 

The  iiuestiou  referriug  sevcu  of  tUo  awards  to  tho  Court  of  Claiiris;  if  uo  uc- 
liou  is  taken  by  the  present  Congress  the  President  will  recognize  the  ab- 
solute validity  of  all  awards.  President  Arthur's  message  of  May  2.5,  1882, 
House  Ex.  Doc.  208,  47th  Cong.,  1st  eess. 

Report  submitting  a  resolution  authorizing  the  President  to  negotiate  for  anew 
claims  commission  to  meet  at  Washington.  House  Rep.  1750,  4?th  Cong., 
1st  seas. 

Amount  of  money  received  by  the  Department  of  State  on  account  of  awards, 
and  its  distribution.  President  Arthur's  message  of  Jnne  30,  1884.  House 
Ex.  Doc.  174,  48th  Cong.,  1st  sess. 

Congress  having  unanimously  requested  the  President  to  reopen  the  claims  treaty 
with  Venezuela,  a  treaty  to  this  effect  was  signed,  and,  with  some  modifications, 
ratified  by  the  Senate  in  1836. 

"The  Secretary  of  state,  to  whom  was  referred  the  following  resoliitiou 
of  the  Senate  of  the  27th  of  February,  1880— 

"EesoJved,  That  the  President  bo  requested,  if  in  his  opinion  not  inconsistent  with 
the  public  service,  to  inform  the  Senate  what  action,  if  any,  has  been  taken  by  him 
under  authority  of  section  5  of  the  act  approved  June  18,  1878,  entitled  'An  act  to 
provide  for  the  distribution  of  the  awards  made  under  the  convention  between  the 
United  States  of  America  and  the  Republic  of  Mexico,  concluded  on  the  4th  day  of 
July,  1868,'  and  of  the  grounds  of  such  action,  and  what  further  action,  if  any,  the 
honor  of  the  United  States  may,  in  his  opinion,  require  to  be  taken  in  the  premises— 

"  Has  the  honor  to  report. 

"  The  act  passed  by  Congress  '  to  provide  for  the  distribution  of  the 
awards  mads  under  the  convention  between  the  United  States  of 
America  and  the  Republic  of  Mexico,  concluded  on  the  4th  day  of  July, 
1868,'  contained  the  following  section  : 

"Sec.  5.  And  whereas  the  Government  of  Mexico  has  called  the  attention  of  the  Gov- 
ernment of  the  United  States  to  the  claims  hereinafter  named  with  a  view  to  a  rehear- 
ing ;  therefore,  be  it  enacted  that  the  President  of  the  United  States  be,  and  he  is  hereby, 
requested  to  investigate  any  charges  of  fraud  presented  by  the  Mexican  Government 
as  to  the  cases  hereinafter  named,  and  if  ho  shall  be  of  the  opinion  that  the  honor  of 
the  United  States,  the  principles  of  public  law,  or  considerations  of  justice  and  equity 
require  that  the  awards  in  the  cases  of  Benjamin  Weil  and  La  Abra  Silver  Mining 
Company,  or  either  of  them,  should  be  opened  and  the  cases  retried,  it  shall  be  lawful 
for  him  to  withhold  payment  of  said  awards,  or  either  of  them,  until  such  case  or  cases 
shall  be  retried  and  decided  in  such  manner  as  the  Governments  of  the  United  States 
and  Mexico  may  agree,  or  until  Congress  shall  otherwise  direct ;  and,  in  case  of  such 
retrial  and  decision,  any  moneys  paid  or  to  be  paid  by  the  Republic  of  Mexico  in  re- 
spect of  said  awards,  respectively,  shall  be  held  to  abide  the  event,  and  shall  be  dis- 
posed of  accordingly ;  and  the  said  present  awards  shall  be  set  aside,  modified,  or 
affirmed,  as  may  be  determined  on  such  retrial :  Provided,  That  nothing  herein  shall 
be  construed  as  an  expression  of  any  opinion  of  Congress  in  respect  to  the  character  ^ 
of  said  claims,  or  either  of  them. 

"It  having  been  referred  by  you  to  the  Department  of  State  to  insti- 
tute the  investigation  required  by  this  action,  I  gave  the  subject  the 
most  careful  examination.  I  reviewed  the  proceedings  of  the  commis- 
sion, including  the  testimony  originally  submitted,  the  arguments  made 
by  the  counsel  both  for  the  Republic  of  ^Mexico  and  the  United  States, 
the  opinions  of  the  members  of  the  commission,  and  the  final  decision 
552 


CHAP.  IX. i     DEPAETMENT  HAS  CONTROL  OF  CASE.      [§  220. 

of  the  umpire.  1  cousideied  Ibc  repieseutatious  of  the  Mexieau  Gov- 
erumeDt,  as  set  forth  iu  its  diplomatic  commuuicatious  to  this  Depart- 
ment, and  subjected  to  patient  scrutiny  the  supplemental  evidence  by 
which  those  representations  had  been  sujiported.  In  addition  to  this, 
I  heard  counsel  both  for  the  Mexican  Government  and  the  parties  in- 
terested in  these  awards. 

"  The  most  impressive  complaint  of  the  Mexican  Government  iu  the 
La  Abra  case  bore  upon  the  award  of  damages  as  fraudulently  exag- 
gerated. 

"  In  the  Weil  case,  the  Government  of  Mexico  asserts  that  no  such 
case  had  ever  had  any  real  existence  j  that  there  never  was  any  such 
property  as  is  alleged  to  have  been  seized ;  that  the  parties  claimant 
never  owned,  directly  or  as  agents,  any  such  property  j  that  the  seizure 
of  the  property  is  iu  all  its  details  a  pure  fiction,  and  that  the  evidence 
by  which  the  whole  claim  is  established  is  spurious  and  corrupt. 

"  Upon  these  complaints,  and  the  examination  given  to  them  as  above 
set  forth,  on  the  8th  of  August  last  I  reported  to  you  my  conclusions 
as  to  the  proper  disposition  of  the  matter  by  the  Executive  Government, 
as  foUows : 

"First.  I  am  of  opinion  that,  as  between  the  United  States  and  Mexico,  tlio  latter 
Government  has  no  riglit  to  complain  of  the  conduct  of  these  claims  before  the  tri- 
bunal of  commissioners  and  umpire  provided  by  the  convention,  or  of  the  judgments 
given  thereuxion,  so  far  as  the  integrity  of  the  tribunal  is  concerned,  the  regularity  of 
the  jiroceedings,  the  full  opportunity,  in  time  and  after  notice,  to  meet  the  case  of  the 
respective  claimants,  and  the  free  and  deliberate  choice  exercised  by  Mexico  as  to 
the  methods,  the  measure,  and  the  means  of  the  defense  against  the  same. 

"I  conclude  therefore,  that  neither  the  principles  of  public  law  nor  considerations  of 
justice  or  equity  require  or  permit,  as  between  the  United  States  and  Mexico,  that  the 
awards  in  these  cases  should  bo  opened  and  the  cases  retried  before  a  new  interna- 
tional tribunal,  or  under  any  new  convention  or  negotiation  respecting  the  same  be- 
tween the  United  States  and  Mexico. 

"Second.  I  am,  however,  of  opinion  that  the  matters  brought  to  the  attention  of  this 
Government  on  the  part  of  Mexico  do  bring  into  grave  doubt  the  substantial  integrity 
of  the  claim  of  Benjamin  Weil,  and  the  sincerity  of  the  evidence  as  to  the  measure 
of  damages  insisted  upon  and  accorded  in  the  case  of  the  La  Abra  Silver  Mining 
Company,  and  that  the  honor  of  the  United  States  docs  require  that  these  two  cases 
should  be  further  investigated  by  the  United  States  to  ascertain  whether  this  Gov- 
ernment has  been  made  the  means  of  enforcing  against  a  friendly  power  claims  of  our 
citizens  based  upon  or  exaggerated  by  fraud. 

"  If  such  further  investigations  should  remove  the  doubts  which  have  been  fairly 
raised  upon  the  representations  of  Mexico,  the  honor  of  the  United  States  will  have 
been  completely  maintained.  If,  on  the  other  hand,  the  claimants  shall  fail  in  remov- 
ing these  doubts,  or  Ihey  should  be  replaced  by  certain  condemnation,  the  honor  of 
the  United  States  will  be  vindicated  by  such  measures  as  may  then  bo  dictated. 

"Third.  The  Executive  Government  is  not  furnished  with  the  means  of  instituting 
and  pursuing  methods  of  investigation  which  can  coerce  the  production  of  evidence  or 
compel  the  examination  of  parties  and  witnesses.  The  authority  for  such  an  investi- 
gation must  proceed  from  Congress.  I  would  advise,  therefore,  that  tlio  proofs  and 
the  conclusions  you  shall  come  to  thereon,  if  adverse  to  the  iiumediato  payment  ou 
these  awards  of  the  InBtallmcnts  received  from  Mexico,  bo  luid  before  Congress  for  tlio 
exercise  of  their  i)lenary  uullioiity  in  t!io  matter. 

553 


\>  220.]  CLAIMS.  [CHAr.  IX. 

"  Fourtli.  It  may  be  that,  as  the  main  imputation  in  the  case  of  the  La  Abra  Silver 
Mining  Company  is  of  frandolent  exaggeration  of  the  claim  in  its  measure  of  damages, 
it  may  consist  with  a  proper  reservation  of  further  investigation  in  this  case  to  make 
the  distribntion  of  the  installments  in  hand. 

•*Ihave  this  subordinate  examination  still  under  examination,  and,  should  you 
entertain  this  distinction,  wiU  submit  my  further  conclusions  on  this  point. 

••  These  conclusions  baving  been  approved  by  yoo,  and  the  point  re- 
served for  farther  consideration  in  the  La  Abra  case  having  again  been 
referred  to  me,  on  the  3d  of  September  hist  I  reported  to  yon  my  con- 
clusions upon  the  same  as  follows  : 

'*  The  parties  interested  in  the  case  of  the  La  Abra  Mining  Company  having  desired 
from  you  a  farther  consideration  of  the  point  reserved  in  my  former  statement  to  you 
of  my  views  in  that  case,  and  the  matter  having  been  referred  to  me  to  that  end,  I  re- 
spectfully submit  my  conclusion  on  that  point. 

•'  1.  Upon  a  renewed  examination  of  the  matter  as  laid  before  me  by  the  Mexican 
Government,  I  am  condrmed  in  the  opinion  that  the  proper  limits  of  the  further  con- 
sideration which  the  honor  of  the  Government  should  prompt  it  to  give  to  this  award 
should  confine  the  investigation  to  the  question  of  a  fraudulent  exaggeration  of  the 
claim  by  the  parties  before  the  commission  to  which,  under  the  provision  of  the  con- 
vention, iC  was  presented  by  this  Government. 

'*  2,  L'pon  a  careful  estimate  as  to  any  probable  or  just  reduction  of  the  claim  from 
further  investigation,  should  Congress  institute  it,  and  under  a  sense  of  the  obligation 
of  the  Executive  Government  to  avoid  any  present  deprivation  of  right  which  does  not 
seem  necessary  to  ultimate  results,  I  am  of  opinion  that  its  distributive  share  of  the 
installments  thus  far  received  from  Mexico  may  properly  be  paid  to  the  claimant, 
reserving  the  question  as  to  later  installments, 

"If  this  concltiaion  should  require  your  approval,  the  payment  can  be  made  upon 
the  verification  at  the  Department  of  State  of  the  rightful  parties  to  receive  it. 

"This  latter  conclusion  having  also  received  yonr  approval,  and  the 
results  stated  in  both  these  reports  having  been  communicated  both  to 
the  3Iexican  Government  and  the  claimants,  the  payment  vras  made 
upon  the  La  Abra  award  of  the  distributive  share  of  the  installments 
then  in  hand,  and  payment  was  withheld  of  the  distributive  share  of 
such  installments  upon  the  Weil  award. 

'•'The  parties  interested  in  these  awards  have  from  time  to  time  pre- 
ferred requests  for  a  renewed  consideration  by  the  Executive  of  the 
questions  arising  for  his  determination  under  the  act  of  Congress  of 
June  18,  1873,  and  have  particularly  insisted  that,  in  deciding  against 
opening  these  awards  diplomatically  and  re-examining  them  by  a  new 
international  commission,  the  whole  discretion  vested  in  the  Executive 
as  a  part  of  the  treaty-making  power  and  under  the  special  provision  of 
the  act  of  Congress  was  exhausted,  and  that  the  payments  should  be 
no  longer  suspended  in  respect  to  these  cases,  or  either  of  them.  A 
solicitous  attention  to  the  rights  of  the  claimants  and  the  duty  of  the 
Executive  in  the  premises  has  confirmed  me  in  the  opinion  that  Con- 
gress should  determine  whether  'the  honor  of  the  United  States'  re- 
quires any  farther  investigation  in  these  cases,  or  either  of  them,  and 
provide  the  efiBcient  means  of  such  further  investigation,  if  thought 
necessary. 

554 


ciiAP.  IX.]         j.ti/vi.i-n£-:  1  iiAS  coxrROL  wr  kx.^e.  tf  2^0. 

*'  In  the  couelosions  to  which  I  came,  and  which  I  had  the  honor  to 
sabmit  to  your  examinarion.  I  wa.?  principally  governed  by  the  foUo^- 
iug  considerations : 

••1.  In  the  complaints  of  the  Mexican  Government  there  i5  :  :  :_- 
slightest  impeachment,  express  or  iniplieJ.  of  the  character  or  c :  —j"-  -- 
tion  of  the  commission,  of  its  methods  of  procednre,  or  of  the  entire 
regnlarity  and  integrity  of  its  actual  proceedings.  It  was  composed  of 
able  and  eminent  men,  enjoying  the  fall  confidence  of  the  GoTemments 
by  whom  they  were  respectively  appointed,  and  the  nmpire  selected.  Sir 
Edward  Thornton,  was  pre-eminently  fitted  for  his  laborious  and  ijBspon- 
sible  duties  by  his  long  diplomatic  experience,  his  recognized  ability, 
his  high  character,  and  his  special  knowledge  of  the  two  eoantdes  whose 
citizens  and  Governments  were  interested  in  the  arbitratioiL 

••  2.  Before  this  commission  the  Government  of  Mexico  had  fidl  oppor- 
tunity and  ample  time  to  present  its  defense,  both  in  evidence  and  argu- 
ment, against  any  claim  that  was  submitted.  In  the  La  Abra  casealaige 
amount  of  testimony  was  taken  on  both  sides,  the  comparison,  and  val- 
uation of  which  was  within  the  power  of  the  commissiiHi,  and  the  opiniim 
of  the  umpire  shows  that  it  was  carefully  considered- 

'•  In  the  Wen  case,  it  is  true  that  the  Mexican  Government  submitted 
no  testimony,  and  that  the  case  was  decided  upon  the  evidraice  affiezed 
by  the  claimants.  But  the  Mexican  commissioner  explicitly  declined 
the  oftcr  of  further  time  to  produce  saeh  testimouT,  although  he  pro- 
fessed that  his  Government  had  such  in  possession;  saying  upon  the 
trial: 

"  Theie  is  in  flie  present  ease  tiie  Btin  moie  seiioiis  rnMsaiU'tm^tat  Hat  tluet?  if  ¥^i^- 
cienc  evidence  upon  which  to  judge  of  the  daJn,  md  that  by  openb^  tL: 
new  testimony  it  would  only  eerve  to  Ehov  the  daimaat  wheson  the  edid .        _     ^ 
he  had  erected  npon  his  ^"agitatV*"  was  weak,  and  by  ad^itening  ^^~    _ 
crown  his  intrigue  by  new  efSoits,  which,  althogsli  they  -s-oaM  not  diaose  :  _ .  _-.:.: 
of  the  ease,  mig^t  lead  him  to  confinn  it. 

"3,  The  treaty  under  the  provisio2.s  o:  ~L:;'_  :_r  orciziiss::-  ~jS  ap- 
pointed was  explicit  in  recognition  of  :'::f  f".":  t  :'  ::s  aotloz.  By 
Article  II  of  that  convention,  the  two  Gv  ond  themselvK 

' -r  the  decisions  of  the  com  tireasabso- 

Jil  and  conclusive,  and  to  _  zisionswith- 

•at  any  objection,  evasion,  or  delay  whatsoever ;  and,  by  the  fifth  article 
the  high  contracting  parties  agree  to  cons' ':    '  "  '     ;  roeeed- 

ings  of  the  commission  as  a  full,  Tperfec*:.  :  every 

•  laim  upon  either  Government  ai-sing  :  r  to  the 

exchange  of  ratifications  thereof 

"  4.  Aside  from  this  special  provision  of  the  finality  of  the 
of  the  commission,  in  the  very  act  of  its  creation,  it  would  seem  impos- 
sible to  review  and  retry  any  individual  case  without  opening  the  door 
toother  reclamations  of  the  same  sort.    Ii- addition  to  these  cases, 
with  the  result  of  which  the  Mexican  Government  is  dissatisfied,  there 

555 


§  220.]  CLAIMS.  tcHAP.  IX. 

arc  many  others  wbicli  i'aik'd  of  preparation  in  time,  wLicli  were  re- 
jected on  principles  not  always  acquiesced  in  by  those  interested,  and 
some  in  which  the  claimants  deemed  the  awards  very  insufQcient.  The 
adherence  of  the  Government  of  the  United  States  to  the  strict  letter 
of  its  convention  that  the  decision  of  the  commissioners  should  be  abso- 
lutely final  in  every  case,  and  a  complete  bar  to  any  claim  arising  from 
transactions  i)rior  to  its  ratification,  has  hitherto  prevented  any  effort 
on  the  part  of  this  Government  to  renew  such  discussion  in  favor  of  its 
citizens.  But  if  it  be  once  admitted  that  for  any  reason  short  of  an  im- 
peachitient  of  the  integrity  of  the  commission  its  proceedings  can  bo 
reopened  for  review  and  its  decisions  for  reversal,  there  will  not  bo 
wanting  numerous  urgent  appeals  to  the  justice  and  sympathy  of  the 
Government  to  extend  this  measure  of  relief  to  man 3-  who  think  that 
their  claims  have  been  erroneously  estimated  or  rejected. 

"Lastly.  The  principle  of  the  settlement  of  international  differences  by 
arbitral  commissions  is  of  such  deep  and  wide-reaching  interest  to  civil- 
ization, and  the  value  of  such  arbitration  depends  so  essentially  upon 
the  certainty  and  finality  of  its  decision,  that  no  Government  should 
lightly  weaken  its  influence  or  diminish  its  consideration  by  makingits 
action  tlie  subject  of  renewed  discussion.  It  is  only  in  extreme  cases, 
where  the  commission  is  itself  charged  with  corruption,  or  where  it  has 
clearly  exceeded  its  powers  in  deciding  matters  not  submitted  to  its 
judgment,  that  prompt  and  cheerful  acquiescence  should  not  be  ren- 
dered to  its  action.  No  such  charge  is  here  suggested.  It  may  be  true 
that  in  this  or  that  instance  more  adequate  justice  might  have  been 
rendered.  The  methods  and  processes  of  such  tribunals,  which  in  time 
it  may  be  confidently  hoped  will  be  improved  and  perfected,  are  not 
yet  so  complete  as  to  eliminate  much  opportunity  of  error.  But  the  re- 
sults of  such  an  arbitration,  covering,  as  this  did,  large,  complicated, 
and  numerous  transactions,  deciding  not  upon  oral  testimony  winnowed 
by  cross-examination,  but  upon  the  contradiction  of  vague  affidavits, 
cannot  be  fairly  judged  by  the  apparent  errors  of  this  or  that  individ- 
ual case.  There  is,  probably,  no  just  ground  for  saying  that  the  aggre- 
gate of  the  awards  against  Mexico  more  than  equaled  the  just  claims 
of  our  citizens,  and  much  complaint  has  been  made  that  such  aggregate 
falls  quite  short  of  them.  But  the  awards  made  by  this  commission 
were  something  more  than  the  settlement  of  mere  private  claims 5  it 
was  the  adjustment  of  long-standing  national  differences.  And  if  in 
the  result  more  or  less  was  added  to  or  taken  from  particular  awards, 
still  if  on  the  whole  a  fair  and  just  balance  has  been  struck  ;  if,  consid- 
ering all  that  has  been  given  and  all  that  has  been  refused,  the  exami- 
nation has  been  careful  and  the  judgment  impartial,  it  is  the  interest 
and  the  duty  of  Governments  to  maintain  it. 

"  While  these  considerations  led  to  the  conclusion  that  these  cases 
ought  not  to  be  made  the  subject  of  a  new  international  commission,  I 
was  yet  of  opinion  that  '  the  honor  of  the  United  States '  was  concerned 
550 


CHAP.  IX.J  DEPARTMENT   HAS   CONTEOL   OP   CASE.  [§  220. 

to  inquire  whether  in  these  cases,  submitted  by  this  Government  to  the 
commission,  its  confidence  had  been  seriously  abused,  and  the  Govern- 
ment of  Mexico,  acting  in  good  faith  in  accepting  a  friendly  arbitration, 
had  been  subjected  to  heavy  pecuniary  imposition  by  fraud  and  perjury 
in  the  maintenance  of  these  claims,  or  either  of  them,  before  the  com- 
mission. In  furtherance,  however,  of  this  opinion,  it  seemed  to  me  ap- 
parent that  the  Executive  discretion  under  the  act  of  Congress  could 
extend  no  further  than  to  withhold  further  payments  on  the  awards 
until  Congress  should,  by  its  plenary  authority,  decide  whether  such 
an  investigation  should  be  made,  and  should  provide  an  adequate  pro- 
cedure for  its  conduct,  and  prescribe  the  consequences  which  should 
follow  from  its  results. 

"  Unless  Congress  should  now  make  this  disposition  of  the  matter, 
and  furnish  thereby  definite  instructions  to  the  Department  to  reserve 
further  payments  upon  these  awards  till  the  conclusion  of  such  investi- 
gation, and  to  take  such  further  order  with  the  same  thereafter  as  Con- 
gress might  direct,  it  would  appear  to  be  the  duty  of  the  Executive  to 
accept  these  awards  as  no  longer  open  to  reconsideration,  and  proceed 
in  the  i)ayment  of  the  same  pro  rata  with  all  other  awards  under  the 
convention." 

Mr.  Evarts,  Sec.  of  State,  report  to  President,  Apr.  13,  1880 ;  trausmitted  by- 
President  Hayes  to  Congress,  Apr.  15,  18S0.  Senate  Ex.  Doc.  150,  40th 
Cong.,  2d  sess. 

If  the  Government  of  the  United  States  is  convinced  that  an  award 
in  its  favor  by  an  international  commission  is  tainted  with  fraud,  it  will 
take  measures  to  have  the  award  set  aside. 

Mr,  J.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Camp,  Sept.  23, 1832.  MSS.  Dora.  Lot. 
See  infra,  $§221,  310. 

"It  may  be  here  observed  that  this  Government  exercises  a  broad 
discretion  in  determining  what  claims  it  will  diplomatically  present 
against  other  nations.  It  has  not  lent,  and  will  not  lend,  its  influence 
in  favor  of  fraudulent  claims.  And  when  in  behalf  of  an  individual  this 
Government  demands  of  another  power  payment  of  money,  it  should 
not  close  its  doors  against  an  investigation  into  the  question  whether 
the  apparent  title  of  the  claimant  to  the  money  is  valid,  or,  because  of 
his  own  fraud,  is  void.  Were  the  case  reversed,  this  Government  would 
contend  for  that  right.  Any  other  doctrine  must  impair  the  dignity  and 
imperil  the  rights  of  those  who  have  honestly  obtained  American  citi- 
zenship." 

Mr.  Frclinglinyiscn,  Sec.  of  State,  to  Mr.  Suydam,  Sept.  25,  1882.  MSS.  Dom. 
Let. 

The  President,  even  without  the  action  of  Congress,  possesses  full 
authority  to  agree  to  rescind,  on  account  of  fraud,  any  award  in  favor 
of  the  United  States  by  an  international  commission. 

.Mr.  Frclingbuyscu,  Sec.  of  State,  to  Mr.  Brewster,  Doc.  4,  1882.     MSS.  Dom.  Lot. 
Ah  to  such  conunissioiiH,  see  infra,  §  221. 

557 


§  220.]  CLAIMS.  [chap.  ix. 

Where  a  grossly  inadequate  sum  is  ofifered  by  a  foreigu  Government 
in  payment  of  a  claim  admitted  by  it  to  bo  due  to  a  citizen  of  the  United 
States,  the  Government  of  the  United  States  may  fix  a  sum  whose  pay- 
ment it  demands  as  an  ultimatum. 

Mr.  Freliughuyson,  Sec.  of  State.,  to  Mr,  Osboruo,  Oct.  18,  1883.     MSS.  Inst., 
Arg.  Eep.     See  further,  eamo  to  same,  Apr.  21,  1884  ;  ibid. 

"A  convention  was  signed  with  Mexico  on  July  13,  1882,  providing 
for  the  rehearing  of  the  cases  of  Benjamin  Weil  and  the  Abra  Silver 
Mining  Company,  in  whose  favor  awards  were  made  by  the  late  Ameri- 
can and  Mexican  Claims  Commission.  That  convention  still  awaits  the 
consent  of  the  Senate.  INIeanwhile  because  of  those  charges  of  fraudu- 
lent awards  which  have  made  a  new  commission  necessary,  the  Execu- 
tive has  directed  the  suspension  of  payments  of  the  distributive  quota 
received  from  Mexico." 

Prosidout  Arthur,  Third  Annual  Message,  1883. 

''The  claims  presented  to  the  French  commission  are  not  private 
claims  but  governmental  claims,  growing  out  of  injuries  to  private  cit- 
izens or  their  property,  inflicted  by  the  Government  against  which  they 
are  i)resented.  As  between  the  United  States  and  the  citizen,  the  claim 
may  in  some  sense  be  regarded  as  private,  but  when  the  claim  is  taken 
up  and  pressed  diplomatically,  it  is  as  against  the  foreign  Government 
a  national  claim. 

"  Over  such  claims  the  prosecuting  Government  has  full  control ;  it 
may,  as  a  matter  of  pure  right,  refuse  to  present  them  at  all;  it  may 
surrender  them  or  compromise  them  without  consulting  the  claimants. 
Several  instances  where  this  has  been  done  will  occur  to  you,  notably 
the  case  of  the  so  called  Trench  spoliation  claims.'  The  rights  of  the 
citizen  for  diplomatic  redress  are  as  against  his  own  not  the  foreign 
Government.  For  the  claims  within  its  jurisdiction  the  commission 
stands  in  the  place  of  the  diplomatic  departments  of  the  two  countries, 
and  the  respective  agents  and  counsel  represent,  not  the  claimants,  but 
their  respective  Governments,  and  it  is  of  the  utmost  importance  to 
frankness,  fair  and  upright  dealing  between  the  two  nations,  that  the 
agents  and  counsel  should  not  in  any  manner  be  interested  in  the  cases 
Avhich  they  present  or  defend.  The  commission  is  not  a  judicial  tribu- 
nal adjudging  private  rights,  but  an  international  tribunal  adjudging 
national  rights." 

Mr.  Frelinghuyseu,  Sec.  of  State,  to  Messrs.  Mullan  &  King,  Feb.  11,  1884. 

MSS.  Dom.  Let. 
As  to  international  commissions,  see  further,  infra,  ^$  221,310. 

"It  is  my  duty  to  draw  your  attention  to  the  present  status  of  the  ne- 
gotiations between  the  Governments  of  Mexico  and  the  United  States, 
in  relation  to  the  reopening  and  retrying  of  the  claims  of  Benjamin 
Weil  and  La  Abra  Silver  Mining  Company  against  Mexico, 
558 


CHAP.  IX.]  DEPARTMENT    HAS    CONTROL    OF    CASE.  [§  220. 

"On  the  4tli  of  July,  1868,  a  treaty  between  the  United  States  and 
Mexico,  providing  for  the  adjustment  of  the  claims  of  either  country 
against  the  other,  was  concluded,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate  was  proclaimed  by  the  President,  February  1,  1869. 

"  By  Article  I  of  this  treaty  it  was  provided  as  follows : 

"All  claims  on  the  part  of  corporations,  companies,  or  private  individuals,  citizens 
of  the  United  States,  upon  the  Government  of  the  Mexican  Republic  arising  from  in- 
j  uries  to  their  persons  or  property  by  autb  orities  of  the  Mexican  Republic,  and  all  claims 
on  the  part  of  corporations,  companies,  or  private  individuals,  citizens  of  the  Mexican 
Republic  upon  the  Government  of  the  United  States,  arising  from  injuries  to  their  per- 
sons or  property  by  authorities  of  the  United  States,  which  may  have  been  presented 
to  either  Government  for  its  interposition  with  the  other  since  the  signature  of  the 
treaty  of  Guadalupe-Hidalgo  between  the  United  States  and  the  Mexican  Republic 
of  the  2d  of  February,  1848,  and  which  yet  remain  unsettled,  as  well  as  any  other  such 
claims  which  may  be  presented  within  the  time  hereinafter  specified,  shall  be  referred 
to  two  commissioners,  one  to  be  appointed  by  the  President  of  the  United  States,  by 
and  with  the  advice  and  consent  of  the  Senate,  and  one  by  the  President  of  the  Mex- 
ican Republic.  In  case  of  the  death,  absence,  or  incapacity  of  either  commissioner, 
or  in  the  event  of  either  commissioner  omitting  or  ceasing  to  act  as  such,  the  President 
of  the  United  States  or  the  President  of  the  Mexican  Republic,  resijectively,  shall 
forthwith  name  another  person  to  act  as  commissioner  in  the  place  or  stead  of  the  com- 
missioner originally  named. 

"The  commissioners  so  named  shall  meet  at  "Washington  within  sis  months  after 
the  exchange  of  the  ratifications  of  this  convention,  and  shall,  before  proceeding  to 
business,  make  and  subscribe  a  solemn  declaration  that  they  will  impartiaUy  and 
carefully  examine  and  decide,  to  the  best  of  their  judgment,  and  according  to  public 
law,  justice,  and  equity,  without  fear,  favor,  or  affection  to  their  own  country,  upon 
all  such  claims  above  specified  as  shall  be  laid  before  them  on  the  part  of  the  Govern- 
ments of  the  United  States  and  of  the  Mexican  Republic,  respectively;  and  such  dec- 
laration shall  be  entered  on  the  record  of  their  proceedings. 

"The  commissioners  shall  then  name  some  third  person  to  act  as  an  umpire  in  any 
case  or  cases  on  which  they  may  themselves  differ  in  opinion.  If  they  should  not  be 
able  to  agree  upon  the  name  of  such  third  person,  they  shall  each  name  a  person,  and 
in  eacu  and  every  case  in  which  the  commissioners  may  differ  in  opinion  as  to  the  de- 
cision which  they  ought  to  give,  it  shall  be  determined  by  lot  which  of  the  two  per- 
sons so  named  shall  be  umpire  in  that  particular  case.  The  person  or  persons  so  to  be 
chosen  to  be  umpire  shall,  before  proceeding  to  act  as  such  in  any  case,  make  and 
subscribe  a  solemn  declaration  in  a  form  similar  to  that  which  shall  already  have  been 
made  and  subscribed  by  the  commissioners,  which  shall  be  entered  on  the  record  of 
their  proceedings.  In  the  event  of  the  death,  absence,  or  incapacity  of  such  person 
or  persons,  or  of  his  or  their  omitting,  or  declining,  or  ceasing  to  act  as  such  umpire, 
another  and  different  person  shall  be  named,  as  aforesaid,  to  act  as  such  umpire  in 
the  place  of  the  person  so  originally  named,  as  aforesaid,  and  shall  make  and  sub- 
scribe such  declaration  as  aforesaid. 

"By  other  articles  of  the  treaty  the  appointment  of  commissioners 
and  of  an  umpire  was  provided  for,  and  the  decisions  of  such  commis- 
sioners conjointly,  or  of  the  um])ire,  were  made  absolutely  final  and  con- 
clusive. 

"Article  II  was  as  follows: 

"The  coramissioucrs  shall  then  conjointly  proceed  to  the  investigation  and  decision 
of  the  claims  which  shall  bo  presented  to  their  notice,  in  such  order  and  in  such  manner 
88  they  may  conjointly  think  proper,  but  upon  such  evidence  or  information  only  as 

559 


§  220.]  CLAIMS.  [ClIAr.  IX. 

shall  1)0  furnished  by  or  ou  behalf  of  their  respective  GoverumeDts.  They  shall  bo 
bound,  to  receive  and  peruse  all  ■written  documents  or  statements  "which  may  bo  pre- 
souted  to  them  by  or  on  behalf  of  their  respective  Governments  in  support  of  or  in 
answer  to  any  claim,  and  to  hear,  if  required,  one  person  on  each  side  ou  behalf  of  each 
Government  on  each  and  every  separate  claim.  Should  they  fnil  to  ajjreo  in  opinion 
upon  any  individual  claim,  they  shall  call  to  their  assistance  the  umpire  whom  they 
have  agreed  to  name,  or  who  may  bo  determined  by  lot,  as  the  case  maybe ;  and  such 
umpire,  after  having  examined  the  evidence  adduced  for  and  against  the  claim,  and 
after  having  heard,  if  required,  ono  person  on  each  side  as  aforesaid,  and  consulted 
with  the  commissioners,  shall  decide  thereupon  Anally  and  without  appeal.  Tho  de- 
cision of  the  commissioners  and  of  tho  umpire  shall  bo  given  upon  each  claim  in  writ- 
ing, shall  designate  whether  any  sura  which  may  be  allowed  shall  be  payable  in  gold 
or  in  the  currency  of  tho  United  States,  and  shall  be  signed  by  them  respectively.  It 
shall  bo  competent  for  each  Government  to  name  ono  person  to  attend  tho  commis- 
sioners as  agent  on  its  behalf,  to  present  and  support  claims  on  its  behalf,  and  to  an- 
swer claims  made  upon  it,  and  to  represent  it  generally  in  all  matters  connected  with 
tho  investigation  and  decision  thereof. 

"Tho  President  of  the  United  States  of  America  and  the  President  of  tho  Mexican 
Republic  hereby  solemnly  and  sincerely  engage  to  consider  tho  decision  of  the  com- 
missioners conjointly  or  of  the  umpire,  as  the  case  may  be,  as  absolutely  final  and 
conclusive  upon  each  claim  decided  upon  by  them  or  him  respectively,  and  to  give 
full  effect  to  such  decisions  without  any  objection,  evasion,  or  delay  whatsoever. 

"It  is  agreed  that  no  claim  arising  out  of  a  transaction  of  a  date  prior  to  the  2d  of 
February,  1848,  shall  bo  admissible  under  this  convention. 

'^Articlo  V  further  provided : 

"The  high  contracting  partiesagree  to  consider  the  result  of  the  proceedings  of  this 
commission  as  a  full,  perfect,  and  final  settlement  of  every  claim  upon  either  Govern- 
ment arising  out  of  any  transaction  of  a  date  prior  to  the  exchange  of  the  ratifica- 
tions of  the  present  convention;  and  further  engage  that  every  such  claim,  whether 
or  not  tho  same  may  have  been  presented  to  tho  notice  of,  made,  preferred,  or  laid 
before  the  said  commission,  shall,  from  and  after  tho  conclusion  of  the  proceedings  of 
the  said  commission,  be  considered  and  treated  as  finally  settled,  barred,  and  thence- 
forth inadmissible. 

"  The  claims  of  Weil  and  La  A.bra  Compauy  were  duly  presented  and 
awards  made  in  favor  of  each. 

"Ou  the  18th  of  June,  1878,  Congress  passed  an  act  (20  Stat.  L., 
144),  section  1  of  which  provides  as  follows: 

"AI^  ACT  to  provide  for  the  distribution  of  tho  awards  made  under  tlic  convention  between  the 
United  States  of  America  and  the  Eepablic  of  Mexico  concluded  on  the  fourth  day  of  July,  eight- 
een hundred  and  sixty-eight. 

"  Be  it  enacted  by  the  Senate  and  House  of  Bepresentatives  of  the  United  States  of  Amer- 
ica in  Congress  assembled,  That  the  Secretary  of  State  be,  and  he  is  hereby,  authorized 
and  required  to  receive  anj"^  and  all  moneys  which  may  bo  paid  by  the  Mexican  Re- 
public under  and  in  pursuance  of  tho  conventions  between  tho  United  States  and  tho 
Mexican  Republic  forthe  adjustment  of  claims,  concluded  July  fourth,  eighteen  hun- 
dred sixty-eight,  and  April  twenty-ninth,  eighteen  hundred  and  seventy-six,  and 
whenever  and  as  often  as  any  installments  shall  have  been  paid  by  tho  Mexican  Re- 
public on  account  of  said  awards,  to  distribute  the  moneys  so  received  in  ratable  pro- 
portions among  tho  corporations,  compaiiies,  or  private  individuals  respectively  in 
whose  favor  awards  have  been  made  by  said  commissioners,  or  by  the  umpires,  or  to 
their  legal  representatives  or  assigns,  except  as  in  this  act  otherwise  limited  or  pro- 
vided, according  to  the  proportion  which  their  respective  awards  shall  bear  to  the 

500 


CHAP.  IX.]  DEPARTMENT    HAS    CONTROL    OF    CASE.  [§  220. 

whole  amount  of  such  moueys  then  held  hy  him,  and  to  pay  the  same,  without  other 
charge  or  deduction  than  is  hereinafter  provided,  to  the  parties  respectively  entitled 
thereto.  And  making  such  distribution  and  payment  due  regard  shall  he  had  to  the 
value  at  the  time  of  such  distribution  of  the  respective  currencies  in  which  the  said 
awards  are  made  payable ;  and  the  proportionate  amount  of  any  award  of  which  by 
its  terms  the  United  States  is  entitled  to  retain  a  part  shall  be  deducted  from  the  pay- 
ment to  be  made  on  such  award,  and  shall  be  paid  into  the  Treasury  of  the  United 
States  as  a  part  of  the  unappropriated  money  in  the  Treasury. 

"  Aud  by  section  5  it  was  also  provided : 

"  Sec.  5.  And  whereas  the  Government  of  Mexico  has  called  the  attention  of  the 
Government  of  the  United  States  to  the  claims  hereinafter  named  with  a  view  to  a 
rehearing,  therefore  be  it  enacted  that  the  President  of  the  United  be,  and  he  is  here- 
by, requested  to  investigate  any  charges  of  fraud  i^resented  by  the  Mexican  Govern- 
ment as  to  the  cases  hereinafter  named,  and  if  he  shall  be  of  the  opinion  that  the 
honor  of  the  United  States,  the  principles  of  public  law,  or  considerations  of  justice 
and  equity,  require  that  the  awards  in  the  cases  of  Benjamin  Weil  and  La  Abra  Sil- 
ver Mining  Company,  or  either  of  them,  should  be  opened  and  the  cases  retried,  it 
shall  be  lawful  for  him  to  withhold  j)ayment  of  said  awards,  or  either  of  them,  until 
such  case  or  cases  shall  be  retried  aud  decided  in  such  manner  as  the  Governments  of 
the  United  States  and  Mexico  may  agree,  or  until  Congress  shall  otherwise  direct. 
And  in  case  of  such  retrial  and  decision,  any  moneys  paid  or  to  be  paid  by  the  Repub- 
lic of  Mexico  in  respect  of  said  awards  respectively,  shall  be  held  to  abide  the  event, 
and  shall  be  disposed  of  accordingly;  and  the  said  present  awards  shall  be  set  aside, 
modified,  or  afiirmed  as  may  be  determined  on  such  retrial:  Provided,  That  nothing 
herein  shall  be  construed  as  an  expression  of  any  opinion  of  Congress  in  respect  to 
the  character  of  said  claims,  or  either  of  them. 

"Approved,  June  18,  1S78. 

"  Under  authority  of  the  last  recited  section  the  then  President  (Mr. 
Hayes)  caused  an  investigation  to  be  made  of  the  charges  of  fraud  pre- 
sented by  the  Mexican  Government  against  these  two  claims,  and  an 
elaborate  report  was  made  April  15,  1880,  by  Mr.  Evarts,  the  then  Sec. 
retary  of  State,  which  was  communicated  to  the  Senate,  and  which 
stated  that  grave  doubts  of  the  substantial  integrity  of  those  claims 
existed,  and  that  the  honor  of  the  United  States  required  the  two  cases 
should  be  further  investigated  by  the  United  States. 

"  The  action  of  the  President  was  communicated  to  Congress  on  the 
15th  of  April,  1880,  and  up  to  this  time  ten  installments  of  the  amounts 
severally  awarded  have  been  paid  by  Mexico  to  the  United  States,  five 
of  which  have  been  distributed  to  the  claimants,  the  last  distributory 
payment  having  been  made  in  the  case  of  La  Abra  Company,  Novem- 
ber 25,  1881,  and  in  the  case  of  Weil,  March  8,  1881. 

"On  April  27,  1880,  a  bill  (S.  1G82),  was  introduced  in  the  Senate  di- 
recting the  United  States  Court  of  Claims  to  investigate  the  claims  of 
Benjamin  Weil  and  La  Abra  Silver  ]Mining  Company,  and  was  referred 
to  tlie  Committee  on  the  Judiciary. 

"  Upon  this  bill  an  adverse  report.  No.  172,  Forty-sixth  Congress, 
second  session,  was  made  l)y  the  Judiciary  Committee,  on  June  10, 1880, 
recommending  its  indelinile  |)(>sti)()nenient,  which  was  duly  ordered  by 
the  Senate.     (Scnahi  Journal,  June  10,  1S,S(»,  )>.  70.",.) 

S.  Mis.  HL'— \<)i..  II ■'50  501 


§  220.]  CLAIMS.  [chap.  IX. 

"  The  substance  of  tbis  report  is  tbat  the  result  of  an  arbitration  au- 
thorized by  an  international  convention  should  not  be  defeated  or  con- 
trolled by  the  separate  action  of  one  of  the  two  Governments,  but  that 
the  proper  remedy  was  in  a  new  convention  in  which  provision  should 
be  made  for  doing  justice  to  all  claimants. 

"  On  July  13,  18S2,  a  new  treaty  was  concluded  between  the  Secre- 
tary of  State,,  j\Ir.  Frelinghuysen,  and  the  Mexican  envoy,  Mr.  Romero, 
and  submitted  to  the  United  States  Senate,  which  provided  for  a  re- 
hearing on  each  of  the  cases  referred  to,  to  control  all  installments  not 
paid  by  Mexico  before  January  31, 1882,  and  the  balance  of  said  claims 
remnining  undistributed  at  that  time. 

"  This  treaty,  which  had  been  pending  in  the  Senate  ever  since  July 
20,  1882,  was  on  the  21st  of  April,  1886,  rejected  by  the  Senate,  as  ap- 
pears by  their  communication. 

"  It  seems  proper  here  to  observe  that  by  the  voluntary  negotiation 
of  this  second  treaty  Mexico  submitted  the  question  (whether  these 
claims  should  be  readjudged  or  no)  to  the  treaty-making  power  of  the 
United  States,  of  which  it  was  well  known  that  two- thirds  of  the  Senate 
was  an  essential  part,  and  that  the  relief  sought  from  the  effects  of  the 
former  treaty  could  only  be  secured  by  obtaining  such  a  constitutional 
majority  in  its  favor. 

"  Suits  had  been  instituted  in  the  supreme  court  of  the  District  of 
Columbia,  by  individuals  interested  in  the  claims  in  questiou,  to  obtain 
writs  of  mandamus  requiring  the  Secretary  of  State  to  pay  to  the  sev- 
eral relators  their  proportions  of  the  installments  of  1882. 

"These  cases  came  up  on  appeal  before  the  Supreme  Court  of  the 
United  States,  and  at  October  term,  1883,  the  history  of  both  of  these 
claims  was  fully  recited  by  the  court  in  delivering  their  opinion;  at 
the  close  of  which  the  following  language  was  employed  by  the  Chief 
Justice : 

"Under  these  circumstances  it  is,  in  our  opinion,  clearly  ■within  the  discretion  of 
the  President  to  -withhold  all  further  payments  to  the  relators  until  the  diplomatic 
negotiations  hetwecn  tlie  two  Governmenis  on  the  subject  are  finally  concluded.     *    *    * 

"All  we  decide  is  that  it  vras  within  the  discretion  of  the  President  to  negotiate 
again  with  Mexico  in  respect  to  the  claims,  and  that  as  long  as  the  two  Governments 
are  treating  on  the  questions  involved,  he  may  properly  withhold  from  the  relators  their 
distributive  shares  of  the  moneys  now  in  the  hands  of  the  Secretary  of  State, 

"There  can  be  no  doubt  that  the  power  to  institute  new  negotiations 
between  the  two  countries  rests  in  the  discretion  of  the  Executive;  yet 
that  discretion  must  be  instructed  by  the  history  of  the  proceedings  to 
which  I  have  alluded;  and  in  the  light  of  the  investigation  and  report 
made  by  your  predecessors  in  office,  and  the  ample  knowledge  of  the 
facts  long  since  and  fully  laid  before  both  houses  of  Congress,  and 
especially  the  Senate,  whose  action  upon  a  proposed  law,  and  subse- 
quently upon  a  treaty,  I  have  herein  fully  related,  I  am  not  informed 
that  you  would  consider  it  would  be  proper  or  expedient  under  the  cir- 
562 


CHAP.  IX.j     DEPARTMENT  HAS  CONTROL  OF  CASE.      [§  220. 

cumstances  again  to  submit  through  the  forms  of  a  treaty  further  propo- 
sitions for  a  rehearing  in  the  two  cases,  in  view  of  the  late  action  of 
the  Senate  of  the  United  States,  whose  adverse  judgment  with  full  in- 
formation of  the  facts  has  been  constitutionally  declared. 

"Nothing  more  is  known  or  remains  to  be  communicated  to  Congress 
than  has  already  been  laid  before  it  in  connection  with  these  two  claims. 
Since  the  negotiation  of  the  treaty  of  1882  no  new  facts  have  been  ad- 
duced on  either  side. 

"I  therefore  respectfully  suggest  that  you  notify  Congress  of  the  con- 
dition of  the  law  and  facts.  The  United  States  have  advocated,  and 
themselves  adopted,  in  cases  of  the  gravest  importance,  the  principle 
of  voluntary  and  amicable  arbitration  for  the  settlement  of  questions 
and  claims  of  an  international  character,  and  it  is  obvious  that  this 
dignified  and  desirable  mode  of  adjustment  can  best  be  maintained  by 
its  production  of  results  satisfactory  to  the  honorable  sense  of  justice 
and  equity  of  both  of  the  high  contracting  parties. 

"  It  is  within  the  province  of  the  legislative  branch  of  this  Government 
now  to  review  the  history  of  the  proceedings — legislative,  executive, 
and  judicial — connected  with  the  two  claims. 

"  The  act  of  Congress  of  June  18,  1878,  contains  a  request  that  the 
President  should  investigate  any  charges  of  fraud  presented  by  the 
Mexican  Government  against  the  claims  in  question,  and  that  if  he 
should  be  of  the  opinion  that  the  honor  of  the  United  States,  the  princi- 
ples of  public  law,  or  considerations  of  justice  and  equity  should  require 
that  these  awards,  or  either  of  them,  should  be  reopened  and  the  cases 
retried,  it  should  be  lawful  for  him  to  withhold  payment  of  said  awards, 
or  either  of  them,  until  such  case  or  cases  should  be  retried  and  decided 
in  such  manner  as  the  Governments  of  the  United  States  and  Mexico  may 
agree.  The  retrial  of  these  cases  was,  therefore,  to  be  subject  to  such 
international  arrangement  as  might  be  agreed  upon  between  the  Gov- 
ernments of  the  United  States  and  Mexico.  On  April  16,  1880,  in 
response  to  a  resolution  of  the  Senate,  the  President  (Mr.  Hayes)  com- 
municated to  the  Senate  the  result  of  the  investigation  made  by  the 
Executive  under  the  direction  or  request  of  the  act  of  June  18,  1878, 
as  appears  by  Executive  Document  No.  150,  Forty-sixth  Congress, 
second  session. 

"This  last-mentioned  actof  Congress  contained  the  further  provision — 
stated  not  additionally,  but  in  the  alternative  to  those  above  recited — 
<  or  until  Congress  shall  otherwise  direct.' 

"  To  relieve  the  action  of  our  Government  from  any  ambiguity  of 
legislative  expression,  or  the  Executive  from  any  uncertainty  as  to  his 
line  of  duty  in  relation  to  the  awards  in  favor  of  Benjamin  Weil  and 
La  Abra  Silver  I\Iining  Company  under  the  treaty  with  Mexico  promul- 
gated February,  1879,  I  suggest  tliat  the  attention  of  Congress  should 
be  earnestly  invoked  to  the  consideration  of  the  present  status  of  these 
claims  referred  to,  and  the  duly  of  the  Executive  under  an  existing 

5G3 


§  220.]  CLAIMS.  [CIIAP.  IX. 

treaty,  to  wLicli  the  force  aud  effect  of  paramount  law  is  given  by  the 
Constitution  in  the  event  of  the  adjournment  of  the  two  houses  without 
furtlier  action  iu  reference  thereto." 

Report  of  Mr.  Bayard,  Sec.  of  State,  to  tbo  Presidout,  May  6,  188G,  sent  by  the 
President  to  Congress  May  11,  1886.  Senate  Ex.  Doc.  140,  49th  Cong.,  Isfc 
seas.      See  further,  App.,  vol.  iii,  $  221. 

The  Senate,  in  executive  session,  on  April  20, 1S8G,  declined  to  consent 
to  the  ratification  of  the  treaty  opening  the  awards.  A  bill  was  then 
introduced  to  refer  the  question  of  both  awards  to  the  Court  of  Claims. 
The  disposal  of  this  measure  awaits  the  nction  of  the  present  Congress. 
(October,  18SG.) 

The  question  is  elaborately  examined  in  a  report  by  Mr.  Morgan,  from 
the  Senate  Committee  on  Foreign  Relations,  June  11,  18SG.  (Senate 
Eep.  131G,  49th  Cong.,  1st  sess.) 

The  following  documents  may  be  referred  to  iu  this  relation : 

Report  relative  to  the  claims  of  La  Abra  Silver  Mining  Company  and  Benja- 
min Weil.     House  Rep.  27,  45th  Cong.,  2d  sess. 

Claims  on  Mexico  of  James  B.  L.  Primm,  H.  S.  Bell,  and  II.  E.  Woodhouse. 
Rciiort  remitting  them  to  the  Executive.  House  Rep.  115,  45th  Cong.,  3rd 
sess. 

Cases  of  Benjamin  Weil  and  La  Abra  Silver  Mining  Company.  Report  favor- 
ing their  reference  to  the  Court  of  Claims.  House  Rep.  1702,  4Gth  Cong., 
2d  sess. 

Report  adverse  to  the  bill  sending  them  to  the  Court  of  Claims  for  investiga- 
tion.    Senate  Rep.  712,  4Gth  Cong.,  2d  sess. 

Payments  made  on  the  Weil  and  La  Abra  claims.  President  Arthur's  message 
of  February  25,  1884,  transmitting  report  of  the  Secretary  of  State.  House 
Ex.  Doc.  103,  48th  Cong.,  1st  sess.) 

By  the  claims  convention  of  July  4, 1868,  between  the  United  State? 
and  Mexico,  it  was  agreed  that  "  all  claims  on  the  part  of  corporations, 
companies,  or  private  individuals,  citizens  of  the  United  States  upon 
the  Government  of  the  Mexican  Republic,  arising  from  injuries  to  their 
persons  or  property  by  authorities  of  the  Mexican  Republic,"  should 
be  submitted  to  the  decision  of  a  commission  to  be  created  under  the 
treaty ;  that  it  should  "  be  competent  for  each  Government  to  name 
one  person  to  attend  the  commission  as  agent  on  its  behalf,  to  present 
and  support  claims  on  its  behalf,"  and  that  the  parties  would  ''con- 
sider the  result  of  the  proceedings  of  this  commission  as  a  full,  perfect, 
and  final  settlement."  It  was  ruled  by  the  Supreme  Court  that  though 
the  awards  made  by  the  commission  under  this  authority  are  on  their 
face  final  and  conclusive,  as  between  the  United  States  and  Mexico, 
they  are  only  so  until  set  aside  by  agreement  between  the  two  Govern- 
ments or  otherwise;  and  that  the  United  States  may  treat  with  Mexico 
for  a  retrial  of  any  case  decided  by  the  commission,  and  that  the  Presi- 
dent may  withhold  from  any  claimant  his  distributive  share  of  any 
sums  paid  by  Mexico  under  the  treaty,  while  negotiating  with  that  Re- 
])ublic  for  a  retrial  of  his  case. 

Frolinglmysen  r.  Key,  110  U.S.,  03. 
5G4 


ClTAP.  IX.'J  DEPARTMENT    HAS    CONTROL    OF    CASE.  [§  220. 

\Vbeu  it  is  alleged  that  a  decision  in  an  international  tribunal  against 
a  foreign  Government  was  obtained  by  the  use  of  fraud,  no  teclinical 
rules  of  pleading  as  applied  in  municipal  courts  should  be  allowed  to 
stand  in  the  way  of  the  national  power  to  do  what  is  right.  It  was 
further  held  in  regard  to  section  one,  of  the  act  of  June  18, 1878  (ch.  262, 
20  Stat.  L.,  Ill,)  which  authorized  and  required  the  Secretary  of  State 
to  receive  all  sums  paid  by  Mexico  in  pursuance  of  its  claims  conven- 
tion with  Mexico,  of  18G8,  and  to  distribute  them  in  ratable  propor- 
tions among  those  in  whose  favor  awards  had  been  made,  that  this  only 
provided  for  the  receipt  and  distribution  of  the  sums  paid  without  such 
a  T)rotest  or  reservation  on  the  part  of  IMexico  as  in  the  opinion  of  the 
President  was  entitled  to  further  consideration,  and  that  it  did  not  set 
new  limits  on  Executive  power.  It  was  also  agreed  that  section  five,  of 
the  act  of  1878,  above  noticed,  requested  the  President  to  investigate 
charges  of  fraud  made  by  Mexico  respecting  the  proof  of  certain  claims 
before  the  commission,  and  pointed  out  some  subsequent  Executive  acts 
that  might  be  done  in  the  premises.  But  it  was  held  that  this  was  only 
an  expression  of  the  desire  of  Congress  to  have  the  charges  investigated, 
and  did  not  limit  or  increase  the  Executive  powers  in  that  respect  under 
pre-existing  laws. 

Ihid.     See  infra,  Q  238. 

"As  to  the  right  of  the  United  States  to  treat  with  Mexico  for  a  re- 
trial, we  entertain  no  doubt.  Each  Government,  when  it  entered  into 
the  compact  under  which  the  awards  were  made,  relied  on  the  honor 
and  good  faith  of  the  other  for  protection  as  far  as  possible  against 
frauds  and  impositions  by  the  individual  claimants.  It  was  for  this 
reason  that  all  claims  were  excluded  from  the  consideration  of  the  com-  • 
mission  except  such  as  should  be  referred  by  the  several  Governments, 
and  no  evidence  in  supijort  of  or  against  a  claim  was  to  be  submitted 
except  through  or  by  the  Governments.  The  presentation  by  a  citizen 
of  a  fraudulent  claim  or  false  testimony  for  reference  to  the  commission 
was  an  imposition  on  his  own  Government,  and  if  that  Government 
afterwards  discovered  that  it  had  in  this  way  been  made  an  instrument 
of  wrong  towards  a  friendly  power,  it  would  be  not  only  its  right,  but 
its  duty  to  repudiate  the  act  and  mate  reparation  as  far  as  possible  for 
the  consequences  of  its  neglect,  if  any  there  had  been.  International 
arbitration  must  always  proceed  on  the  principles  of  national  honor 
and  integrity.  Claims  presented  and  evidence  submitted  to  such  a 
tribunal  must  necessarily  bear  the  impress  of  the  entire  good  faith  of 
the  Government  from  which  they  come,  and  it  is  not  to  be  presumed 
that  any  Government  will  for  a  moment  allow  itself  knowingly  to  be 
made  the  instrument  of  wrong  in  any  sucli  i)roceeding.  No  technical 
rules  of  pleading  as  applied  in  municipal  courts  ought  ever  be  allowed 
to  stand  in  the  way  of  the  national  i)Ower  to  do  what  is  right  under  all 
the  circumstances.     Every  citizen  who  asks  the  intervcnlion  of  his  own 

505 


§  220.]  CLAIMS.  [chap.  jx. 

Goverumeut  a^Miust  auotlier  for  the  redress  of  liis  personal  grievauces 
must  necessarily  subject  himself  and  his  claim  to  these  requirements 
of  international  comity.  None  of  the  cases  cited  by  counsel  are  in  op- 
position to  this,  they  all  relate  to  the  disposition  to  be  made  of  the  pro- 
ceeds of  international  awards  after  they  have  passed  beyond  the  reach 
of  the  Government  and  into  the  hands  of  private  parties.  The  language 
of  the  opinions  must  be  construed  in  connection  with  this  fact.  The 
opinion  of  the  Attorney-General  iuGibbes's  case,  13  Op,,  19,  related  to 
the  authority  of  the  executive  officers  to  submit  the  claim  of  Gibbes  to 
the  second  commission  after  it  had  been  passed  on  by  the  first,  without 
any  new  treaty  between  the  Governments  to  that  effect,  not  to  the 
power  to  make  such  a  treaty." 

Waite,  C.  J.,  in  opinion  in  Freliugliuysen  v.  Key,  ut  supra.  See  also  in  tbia  case 
pamphlet  by  Mr,  G.  T,  Curtis,  "International  Arbitrations  and  Awards," 
and  pampblet  by  Mr.  J.  W.  Foster  in  reply  on  "International  Awards 
and  National  Honor." 

Should  the  Government  of  the  United  States,  either  by  its  neglect  in 
pressing  a  claim  against  a  foreign  Government  or  by  extinguishing  it  as 
an  equivalent  for  concessions  from  such  Government,  impair  the  claim- 
ant's rights,  it  is  bound  to  duly  compensate  such  claimant. 

See  infra,  $  248. 

As  to  the  right  of  the  Government  to  extinguish  a  debt  due  to  one  of  its  citi- 
zens by  a  foreign  sovereign,  see  infra,  $  248. 

An  act  of  Congress  authorizing  the  judges  of  the  superior  courts  es- 
tablished at  Pensacola  and  Saint  Augustine  to  adjust  the  claims  pro- 
vided for  by  the  treaty  of  1821,  for  the  cession  of  Florida,  does  not  mate 
the  decision  of  those  courts  final.  They  are  subject  to  review  and 
reversal  by  the  Secretary  of  the  Treasury. 

3  0p.,677,Legar6,  1841;  4  ihid.,28G,  Nelson,  184:J;  (J  ibid.,  533,  Gushing,  1854. 
See  infra,  $  IGl. 

Although  it  may  have  been  a  rule  of  an  Executive  Department  to 
construe  an  act  of  Congress  relating  to  claims  in  a  particular  manner, 
yet  when  Congress  has  afterward  expressed  an  opinion  in  conflict  with 
that  of  the  Department,  such  action  of  Congress  has  been  considered 
as  in  the  nature  of  a  legislative  interpretation,  which  becoming  courtesy 
to  the  legislative  department  requires  the  Executive  to  observe. 

5  Op.,83,  Johnson,  1849. 

The  Secretary  of  State  must  use  his  discretion  in  deciding  whether 
to  press  the  claim  of  a  citizen  of  the  United  States  against  a  foreign 
Government. 

9  Op.,  338,  Black,  1859. 

In  Gibbes's  case,  au  award,  under  the  treaty  with  New  Granada  of 
1857,  was  made  in  his  favor  by  an  international  commission,  but,  under  a 
new  treaty,  was  set  aside  by  the  new  arbitrators.     The  first  award, 
5GG 


CHAr.  IX.]  DEPARTMENT    HAS    CONTROL    OF    CASE.  [§  220. 

however,  uot  having  been  Viicated  or  set  aside  during  the  contiuiiauce 
of  the  commission,  was  held  to  be  conclusive.  Mr.  Hoar,  Attorney-Gen- 
eral, said : 

"I  cannot  assent  to  the  view  that  this  Government  could  affect  his 
(the  claimant's)  rights  under  the  convention,  by  submitting  his  case  to 
the  second  board,  or  that  the  board  was  able  to  divest  those  rights  by 
any  action  upon  the  claim,  under  the  submission  of  our  Government, 
against  his  will  and  without  his  conseut." 

13  Op.,  19.     See,  for  fuller  statement,  infra,  $  221. 

The  Halifax  fishery  award  of  $5,000,000  against  the  United  States, 
though  open  to  grave  objections,  was  held  by  Mr.  Evarts,  Secretary  of 
State,  not  subject  to  revision  except  by  consent  of  the  British  Govern- 
ment, which  consent  was  refused.    See  supra,  §  316. 

The  awards,  under  the  treaty  with  Mexico  of  1848,  were  set  aside  by 
act  of  Congress  in  the  Atocha  case,  and  by  the  courts  in  the  Gardiner 
case  (13  Stat.  L.,  595 ;  16  Stat.  L.,  633).  Two  of  the  awards  under  the 
Chinese  claims  treaty  of  1858,  were  reopened  in  behalf  of  rejected  claim- 
ants (15  Stat.  L.,  440;  20  Stat.  L.,  171).  The  Secretary  of  State,  in  the 
case  of  the  Caroline,  returned  to  Brazil,  against  the  claimant's  protest, 
money  to  be  paid  him  under  a  diplomatic  settlement.  (See  Senate  Eep. 
1376,  40th  Cong.,  1st  sess.) 

The  award  of  an  international  commission  does  not  finally  settle  the 
equitable  rights  of  third  persons  to  the  money  awarded,  yet  it  makes  a 
legal  title  to  the  person  recognized  by  the  award  as  the  owner  of  the 
claim  ;  and  if  he  also  has  equal  equity,  his  title  cannot  be  disturbed. 
Jndson  r.  Corcoran,  17  How.,  612. 

The  principle  is  that  "as  between  the  United  States  and  the  claim- 
ants, the  honesty  of  the  claim  is  always  open  to  inquiry  for  the  purpose 
of  fair  dealing  with  the  Government  agaiust  which,  through  the  United 
States,  a  claim  has  been  made." 

Waite,  C.  J.,  Frelingbuysen  v.  Key,  110  U.  S.,  63. 

United  States  v.  Throckmorton,  98  U.  S.,  61,  was  a  bill  of  chancery  on 
the  part  of  tbe  United  States  to  set  aside  a  patent  for  lands,  or  the  final 
coufiruiatiou  of  a  Mexican  grant.  It  was  held  that  to  sustain  such  suit 
it  should  appear  that  the  Attorney-General  had  authorized  it.  It  was 
further  lield  that  the  frauds  for  which  a  bill  to  set  aside  a  judgment  or 
a  decree,  between  the  same  parties,  by  a  court  of  competent  jurisdic- 
tion, will  be  sustained,  are  those  which  are  extrinsic  or  collateral  to  the 
matter  tried,  and  not  a  fraud  which  was  in  issue  in  the  former  suit. 
The  ca.ses  wliere  such  relief  has  been  granted  are  tho.se  in  which,  by 
fraud  or  deception  practiced  ui)on  the  unsuccessful  party,  he  has  been 
prevented  from  exhibiting  liilly  his  case,  by  reason  of  which  there  has 
never  been  a  real  contest  before  the  court  of  the  subject-matter  of  tlie 
suit.  This,  however,  does  not  apply  to  cases  of  opening  by  the  consent 
of  the  two  litigant  sovereigns. 

The  o])inion  of  Mr.  Binney,  that  it  is  not  within  the  ])()wer  of  the  Gov- 
ernment to  "confiscate"  a  debt  from  a  ibreign  Government  without 
compensation  is  given  infra,  §  248 — Meade's  case. 

607 


§221.]  CLAIMS.  [chap  IX. 

The  settled  rule,  however,  now  is  that  the  Government  of  the  United 
States  has  absolute  control  of  all  claims  by  its  citizens  against  foreign 
Governments;  becoming,  as  a  matter  of  ])iiblic  duty,  liable  to  citizens 
holding  such  claims  for  losses  they  may  have  suflered  through  its  fail- 
ure to  show  due  diligence  in  pressing  their  interests. 

(4)  ARniTiiATiox  rRorEU  when  Governments  disagree;   limits  of  arbitra- 
tion. 

§  221. 

Arbitration  as  a  mode  of  settling  international  contentions  is  dis- 
cussed in  a  future  section. 

Infra,  $  316. 

AVhen  two  Governments  disagree  as  to  the  validity  of  a  claim  made 
by  one  upon  the  other,  or  as  to  the  amount  of  damages  to  be  awarded 
on  such  claim,  then  the  approiiriate  remedy  is  arbitration  by  a  mixed 
commission  or  by  an  umpire.  AVhen  there  are  reciprocal  claims  and 
set-oft's  then  all  the  international  claims  pending  between  the  countries 
ma3'  be  referred  to  a  commission. 

"  The  doubt  respecting  the  authority  of  the  commissioners  to  settle 
their  own  jurisdiction  was  absurd;  and  they  must  necessarily  decide 
upon  a  case's  being  within  or  without  their  competency." 

Lord  LoughborougL,  as  quoted  by  Mr.  King's  *^o.  26,  Feb.  20,  1797,  MSS.  Dis- 
patches, Gr.  Brit.,  as  given  iu  Mr.  Bancroft  Davis'  Notes  to  Treaties,  93. 
This  view  was  adopted  by  Lord  Grenville,  thou  minister  for  foreign  affairs. 
See  2  Am.  St.  Pap.,  (For.  Eel.,)  398.  And  see  the  Dawson  and  the  Lord 
Nelson,  Senate  Ex.  Doc.  103,  34th  Cong.,  1st  sess. 

That  decisions  of  prize  courts  are  not  final,  see  infra,  ^  329a.     And  see  also  $  238. 

As  to  treaty  provisions,  see  supra,  ^  150a. 

As  to  effect  of  disagreement  of  arbitrators,  see  Lord  Grenville's  letter  of  Apr. 
19,  1806.    2  Am.  St.  Pap.,  (For.  Eel.,)  398;  supra,  $  150&. 

As  to  arbitration  in  case  of  brig  General  Armstrong,  see  infra,  $$  227, 248, 399, 401. 

As  to  setting  aside  the  Netlierlands  arbitration,  see  infra,  §  316. 

The  officers  of  iuternational  commissions  may  be  removed  by  agree- 
ment of  the  contracting  powers  creating  the  commission. 

Mr.  Trescot,  Acting  Sec.  of  State,  to  Lord  Lyons,  Jnly  31,  1860.  MSS.  Notes, 
Gr.  Brit. 

"  You  will  then  be  expected  to  advert  to  the  subject  of  the  mutual 
claims  of  citizens  and  subjects  of  the  two  countries  against  the  Gov- 
ernment of  each  other,  respectively.  The  difficulty  in  this  respect  has 
arisen  out  of  our  claims,  which  are  known  and  described  in  general 
terms  as  the  Alabama  claims.  In  the  first  place,  Her  Majesty's  Gov- 
ernment not  only  denied  all  national  obligation  to  indemnify-  citizens  of 
the  United  States  for  these  claims,  but  even  refused  to  entertain  them 
for  discussion.  Subsequently  Her  Majesty's  Government  upon  recon- 
sideration proposed  to  entertain  them  for  the  purpose  of  referring  them 
to  arbitration,  but  insisted  upon  making  them  the  subject  of  special 
reference,  excluding  from  the  arbitrators'  consideration  certain  grounds 
■which  the  United  States  deem  material  to  a  just  and  fair  determination 
508 


CHAP.  IX.J  ARBITRATION.  [§221. 

of  the  merits  of  the  chiiius.  The  Uuited  States  declined  this  special 
excei)tion  and  exclusion,  and  thus  the  proposed  arbitration  has  failed. 
It  seems  to  the  President  that  an  adjustment  might  now  be  reached 
without  formally  renewing  former  discussions." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Moran,  July  17,  1868.     MSS.  Inst.,  Gr.  Brit. 

After  the  outbreak  of  the  Cuban  insurrection  of  1868  the  Spanish 
Government  issued  decrees  embargoing  the  property  of  cerlaiu  citizens 
of  the  United  States,  and  prohibiting  the  alienation  of  such  i^roperty. 
The  Government  of  the  United  States  complained  of  this  and  other 
oppressive  actions  as  violating  the  7th  article  of  the  treaty  of  1795. 
The  result  was  the  reference  of  the  questions  involved  to  a  mixed  com- 
mission. 

Senate  Ex.  Doc.  108,  41st  Cong.,  2d  sess.,  243. 

"This  Department  has  for  many  years  past  adopted  the  policy  of 
submitting  to  a  disinterested  arbitration  claims  of  its  citizens  against 
other  Governments,  when  otherwise  unable  to  agree  upon  an  adjust- 
ment, and  when  no  political  reasons  have  interfered  to  prevent  such 
submission,  and  when  there  has  been  no  great  principle  of  public  law 
at  issue." 

Mr.  J.  C.  B.  Davis,  Acting  Sec.  of  State,  to  Mr.  Allen,  Aug.  13,  18G9.    MSS. 
Dom.  Let.     As  to  rules  in  such  cases,  see  infra,  §  31G. 

"  The  principle  (of  arbitration)  is  one  that  has  been  followed  on  many 
occasions  by  this  Government  in  settling  disputed  claims  between  its 
citizens  and  foreign  iiowers.  It  has  been  the  custom  in  these  cases  to 
conclude  a  formal  convention  with  the  interested  power  by  which  a 
claims  commission  is  to  be  formed,  to  be  composed  in  general  of  two 
arbitrators,  one  to  be  chosen  by  the  Secretary  of  State,  and  one  by  the 
minister  of  the  other  power,  and  an  umpire,  to  be  likewise  agreed  upon 
by  the  Secretary  of  State  and  the  minister,  whose  decisions  shall  be  re- 
garded as  final.     *     *     * 

"I  may  add  that  an  agreement  so  entered  into  has  all  the  solemnity 
and  finality  of  a  treaty  between  the  powers  who  are  parties  to  it,  and  is 
in  no  sense  an  informal  reference  of  a  matter  of  contention  between  two 
powers  to  the  decision  of  the  minister  of  a  third  power." 

Mr.  Frelinghuyscn,  Sec.  of  State,  to  Mr.  Rosecrans,  Oct.  17, 1883.  MSS.  Dora.  Let. 

"  The  second  article  of  the  claims  convention  of  January  15,  1880, 
with  France  provides  as  follows  : 

'"The  said  commission  thus  constituted,  shall  be  con)petent  and  obliged 
to  examine  and  decide  upon  all  claims  of  the  aforesaid  character,  pre- 
sented to  them  by  the  citizens  of  either  country,  except  such  as  have 
been  already  diplomatically,  judicially  or  otherwise  by  competent  au- 
thorities heretofore  dis[)osed  of  by  either  Government.' 

"  Under  the  interpretation  ]tnt  upon  the  treaty  by  l)()tli  (loxcrniiKMits, 
all  cases  that  had  been  passed  ujmn  by  i)rize  tribunals  were  excepted 
from  the  jurisdiction  of  the  commission.     (Ex.  Doc.  235, 48th  Cong.,  2d 

8083.,  235.) 

OGO 


§  221.]  CLAIMS.  [chap.  IX. 

"  It  is  held  by  this  Goveruiueut  that  the  action  of  the  commission  in 
dechiriug  that  it  had  no  jurisdiction  of  the  claim  in  question  in  no  way 
bars  its  presentation  to  the  Frencli  Government  for  payment.  I  have 
therefore  to  request  you  to  recall  this  claim,  including  indemnity  for  the 
detention  of  the  schooner  and  the  breaking  up  of  the  voyage,  to  the  at- 
tention of  the  French  foreign  ofQce,  as  one  which  is  believed  by  this 
Government  to  be  just  and  fair,  and  to  urge  its  early  settlement." 

Mr.  Bayard.  Sec.  of  State,  to  Mr.  McLaue,  July  29,  1885.     MSS.  Inst.,  France. 

"  It  might,  indeed,  be  argued  that  the  adoption  and  execution  of  the 
agreement  of  1871,  and  the  final  disposition  and  satisfaction  of  all  claims 
allowed  under  it,  preclude  the  presentation  by  this  Department  of  a 
claim  against  Spain  for  losses  sufiered  by  Mr.Morrell  between  1870  and 
1875.  But  the  agreement  contains  no  provision  barring  as  against 
Spain  all  existing  claims  not  presented  to  the  arbitrators,  and  the  pres- 
ent claim  does  not  appear  to  be  so  far  barred  by  the  agreement  or  by 
the  proceedings  under  it  as  to  preclude  its  presentation  to  the  Spanish 
Government.  Should  the  minister  of  state  be  indisposed  to  make  a 
present  adjustment  of  this  claim,  you  will  endeavor  to  have  it  embraced 
in  any  general  settlement  of  i)ending  claims  which  it  may  be  found 
convenient  in  the  future  to  bring  about  by  a  convention  between  the 
two  Governments  or  otherwise." 

Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Curry,  Jan.  2,  1886.     MSS.  Inst.,  Spain. 
As  to  res  adjudicaia  in  such  cases,  see  infra,  $  238. 

"  WhUe  the  claim  of  Mrs.  Stevens  presents  analogies  of  treatment 
with  the  other  cases  to  which  you  refer,  it  stands  on  a  distinct  footing 
of  its  own,  being  one  of  a  class  heretofore  declared  to  be  proper  for  ad- 
judication on  the  merits  by  a  specially  provided  tribunal  of  arbitration. 
If  the  Mexican  Government  should  set  up  the  late  claims  convention, 
and  the  failure  to  submit  the  claim  to  the  commission  organized  there- 
under, as  a  bar,  it  has  the  right  to  do  so.  We,  however,  have  no  right 
to  debar  the  claimant  from  the  possible  benefits  of  an  appeal  for  a  hear- 
ing on  the  merits,  for  thv,  Mexican  Government  has  full  liberty  of  waiver 
in  respect  of  such  bar,  and  may,  at  its  own  pleasure,  consent  and  agree 
to  permit  the  claimant's  case  to  be  stated  and  heard.  All  that  we  can 
ask  is  that  the  Mexican  Government  avail  itself  of  the  opportunity  to 
manifest  its  sense  of  magnanimity  and  justice  in  this  regard,  if  its  dis- 
passionate examination  of  the  appeal  shall  warrant  it  in  doing  so.  If 
the  result  be  to  set  up  the  treaty  as  a  bar,  we  would  not  hesitate  to  con- 
cede its  eflfectiveness,  as  we  should  expect  Mexico  to  concede  our  posi- 
tion were  the  case  reversed  and  our  answer  made  in  those  terms.  But 
Seiior  Mariscal  cannot  be  unmindful  of  the  fact  that  this  very  treaty  bar 
has  only  recently  been  the  subject  of  consideration  between  the  two  Gov- 
ernments, by  reason  of  the  Mexican  appeal  in  the  Weil  and  La  Abra 
cases,  and  that  the  United  States  have  met  Mexico  half  way  in  anearn- 
670 


CITAP.  IX.]  ARBITRATION.  [§  221. 

est  effort  to  secure  the  euds  of  equity  aud  justice,  by  providing  a  resort 
not  contemplated  when  the  treaty  was  framed,  and,  indeed,  barred  by 
its  express  terms." 

Mr.  Bayard,  Sec,  of  State,  to  Mr.  Jackson,  Jan.  26,  1886.     MSS.  Inst.,  Max. 

"The  general  rule  is  that  when  an  arbitrator  or  a  referee  makes  a 
decision  and  adjourns  without  expressly  deciding  a  motion  for  a  rehear- 
ing, the  decision  is  left  in  full  force.  The  motion  does  not  ipso  facto 
reopen  the  case ;  and  the  adjournment  without  specific  action  on  the 
motion  by  implication  denies  it. 

"  With  respect  to  the  objection  to  the  decision  of  the  arbitrators, 
that  it  is  not  altogether  sound  in  law,  it  is  to  be  noticed  that  nuder  the 
convention  under  which  the  United  States  and  Spanish  Claims  Com- 
mission was  organized,  the  two  Governments  expressly  agreed  that 
they  would  accept  the  awards  made  in  the  several  cases  submitted  to 
the  proposed  arbitration  as  final  and  conclusive.  This  provision  was 
adopted  by  the  contracting  i^arties  as  an  essential  part  of  the  arrange- 
ment for  the  settlement  and  disposition  of  claims,  and  with  the  under- 
standing that  it  was  to  be  kept  as  faithfully  as  any  other  provision  of 
the  treaty." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Rodriguez,  Mar.  22, 1886.     MSS.  Dom.  Let. 

"  I  have  failed  to  discover  in  your  letter  any  reason  for  changing  the 
opinion  expressed  in  my  letter  of  the  22d  instant,  that  it  would  be  im- 
proper, upon  the  grounds  which  you  allege,  for  this  Government  to 
seek  to  reopen  the  claims  in  question,  after  their  dismissal  on  the  merits 
by  the  commission.  It  is  conceived  that  the  distinction  which  you 
draw  between  a  claims  commission  under  a  treaty  duly  ratified  by  the 
Senate,  and  such  a  commission  under  a  diplomatic  agreement,  while 
material  in  some  relations,  does  not  afifect  the  binding  force  of  the  de- 
cisions in  either  case  as  between  the  contracting  Governments  upon 
all  claims  which  properly  fell  within  the  scope  of  the  commission.  The 
case  of  the  brig  General  Armstrong,  which  you  cite,  does  not  appear  to 
lend  any  strength  to  your  argument,  for,  notwithstanding  the  denunci- 
ation of  the  award  of  the  arbitrator,  no  effort  was  made  to  reopen  the 
question  with  Portugal;  and  in  the  opinion  of  Chief-Justice  Gilchrist, 
to  which  you  refer,  there  was  an  express  disclaimer  of  any  denial  of  the 
power  of  the  United  States  '  to  submit  to  arbitration  the  claim  of  one  of 
its  own  citizens  upon  a  foreign  Government,  which  it  has  been  prose- 
cuting, in  such  a  way  as  to  preclude  itself  from  again  pressing  that 
claim  upon  such  foreign  Government.' 

"It  is  also  to  be  observed  that  in  the  cases  which  you  are  now  seek- 
ing to  have  reopened  the  claimants  submitted  themselves  to  the  com- 
mission without  protest,  and  had  their  cause  ably  and  fully  presented. 
In  tiiis  regard  their  present  position  is  tlie  reverse  of  that  of  the  claim- 
ants in  the  case  of  the  General  Armstrong  when  they  presented  their 
petition  to  Congress  for  relief.    The  only  act  by  which  it  was  attempted 

571 


§221.]  CLAIMS.  [chap.  IX. 

to  show  that  they  hiul  consented  to  the  submission  of  their  ehiiiu  lo 
arbitration  was  the  request  of  their  agfcnt  to  be  permitted  to  present  an 
argument  in  support  of  the  claim  to  the  arbitrator,  and  tliis  request  the 
Secretary  of  State  denied." 

Mr.  Bayarcl,  Sec.  of  State,  to  Mr.  Koihigue>:,  Mar.  31,  1880.     MSS.  Doui.  Let. 
Infra,  $238.     See  App.,  vol.  Hi,  ^  221. 

Tlie  decision  of  an  international  tribunal  over  matters  as  to  which 
it  is  made  the  supreme  arbiter  is  final,  and  is  not  the  subject  of  revision, 
except  by  the  consent  of  the  contesting  sovereigns. 
Comegys  v.  Vasse,  1  Pet.,  212. 

Under  the  treaty  with  Spain  of  February  22,  1819,  provision  was 
made  for  the  appointment  of  commissioners  to  "receive,  examine,  and 
decide  upon  the  amount  and  validity  of  all  claims"  of  a  certain  descrip- 
tion against  that  Government.  It  was  held  that  this  gave  the  commis- 
sioners power  to  decide  conclusively  npon  the  amount  and  validity  of 
claims,  but  not  npon  the  conilicting  rights  of  parties  to  the  sums 
awarded  by  them. 

Comegys  v.  Vasse,  1  Pet.,  193. 

The  same  rule  applies  to  the  treaty  with  France  cf  the  4th  of  July, 
1831. 

Frevall  r.  Baclie,  14  Pet.,  95.     See  infra,  $  31(5. 

Under  the  act  of  Congress  constituting  a  board  of  commissioners  to 
pass  on  claims,  provided  for  by  the  treaty  with  France  of  1831,  the  de- 
cision of  the  board  between  conflicting  claimants  is  not  conclusive,  and 
the  question  of  their  respective  titles  is  fully  open  to  be  adjudicated  by 
the  courts. 

Ihid.     S>n}ra,^USff. 

The  award  of  commissioners  under  the  act  of  1849  (9  Stat.,  393),  passed 
to  carry  into  effect  the  convention  with  Mexico  of  1848,  does  not  finally 
settle  the  equitable  rights  of  third  persons  to  the  money  awarded.  It 
makes,  however,  a  legal  title  to  the  person  recognized  by  the  award  as 
the  owner  of  the  claim,  and  if  he  also  have  equal  equity,  his  legal  title 
cannot  be  disturbed. 

Judson  V.  Corcoran,  17  How.,  i'A'l.     Supra,  $  154. 

An  act  of  Congress  referring  a  claim  against  the  Government  to  an 
officer  of  one  of  the  Executive  Departments  to  examine  and  adjust,  does 
not,  even  though  the  claimant  and  Government  act  under  the  statute 
and  the  account  is  examined  and  adjusted,  make  the  case  one  of  arbi- 
trament and  award,  in  the  technical  sense  of  these  words,  so  as  to  bind 
either  party  as  by  submission  to  award.  Hence  a  subsequent  act  re- 
pealing the  one  making  the  referauce  (the  claim  not  having  been  yet 
paid)  impairs  no  right,  and  is  valid. 

Gordon  v.  U.  S.,  7  Wall.,  ISS.    As  to  res  adjudicata,  see  infra,  $  238. 

672 


CHAP.  IX.]  ARBITRATION.  [§221. 

Where  a  special  mode  is  provided  for  obtaiuiug  compeusatiou,  such 
as  by  statute  or  by  treaty,  or  where  the  power  of  assessing  or  deciding 
on  the  questions  is  given  to  a  special  tribunal,  the  remedies  specially 
provided  can  alone  be  pursued,  and  no  action  in  the  premises  can  be 
maintained  in  the  Court  of  Claims. 

Meade's  case,  2  C.  Cls.,  228;  affirmed,  9  Wall.,  G91. 

An  award  was  made  under  the  7th  article  of  the  treaty  of  1794  with 
Great  Britiau  to  several  persons  collectively,  who  afterwards  disagreed 
as  to  their  respective  shares.  It  was  advised  that  the  Government  had 
only  to  see  that  the  money  was  paid  to  those  in  whose  favor  it  was 
awarded,  and  that  they  must  resort  to  the  courts  to  settle  their  dif- 
ferences. 

1  Op.,  153,  Breckenridge,  1805. 

By  the  fifth  article  of  the  convention  of  1822,  "in  the  event  of  the 
two  commissioners  (on  the  part  of  the  United  States  and  Great  Britain 
respectively)  not  agreeing  in  any  particular  case  under  examination,  or 
of  their  disagreement  upon  any  question  which  may  result  from  the 
stipulations  of  this  convention,  then,  in  that  case,  they  shall  draw  by 
lot  the  name  of  one  of  the  two  arbitrators  who,  after  having  given  due 
consideration,"  etc.  The  commissioners  disagreed  as  to  the  allowance 
of  interest,  but  the  British  commissioner  refused  to  call  an  arbitrator. 
It  was  held  that  his  action  was  unwarranted. 

2  Op.,  28,  Wirt,  1826.     See  supra,  $  IbOd. 

By  the  fifth  article  of  the  convention  of  1818,  certain  differences  were 
referred  to  the  Emperor  of  Eussia,  who  awarded  that  the  United  States 
were  "  entitled  to  claim  from  Great  Britain  a  just  indemnification  for 
all  private  property  which  the  British  forces  may  have  carried  away  ; 
and,  as  the  question  relates  to  slaves  more  especially,  for  all  the  slaves 
that  the  British  forces  maj'  have  carried  away  from  places  and  terri- 
tories of  which  the  treaty  stipulates  the  restitution,  in  quitting  these 
same  places  and  territories."  A  convention  was  subsequently  formed 
at  St.  Petersburg  between  the  United  States  and  Great  Britain,  July 
12,  1822,  "for  the  purpose  of  carrying  into  effect  this  award  of  His 
Imperial  Majesty."  A  question  arose  as  to  the  payment  of  interest  on 
the  indemnity  awarded,  and  Great  Britain  appealed  to  the  terms  of  the 
convention  of  1822  as  relieving  her  from  such  payment.  It  was  held 
that  "just  indemnification"  involved  not  merely  the  return  of  the  value 
of  the  specific  property,  but  compensation  in  the  nature  of  damages  for 
the  wrongful  detention  of  it ;  but  since  this,  if  not  impracticable,  would 
be  a  work  of  great  labor  and  time,  interest,  according  to  tbe  usnge  of 
nations,  was  a  necessary  ])art  of  the  indemnilication.  It  was  further 
held  tljat  in  ca.se  of  conflict  between  tbe  award  and  the  terms  of  the 
convention  of  1822,  the  latter  should  give  way  to  the  former. 

2  Oi».,  2H,  Wirt,  1H20.     Supra,  ^  \r,Od.     As  to  iiitcrost,  src  hi/ni,  ^  2li;. 

5TA 


§221.]  CLAIMS.  [CHAl'.  IX. 

According  to  tlie  public  law  of  tbe  moiiarcbies  of  Europe,  the  author- 
itj'  of  miuisters,  aud  perhaps  of  iuternatioual  commissioners,  expires  ou 
the  death,  deposition,  or  abdication  of  the  prince;  but  not  so  as  between 
the  American  Republics,  iu  which  the  executive  power  is  permanent  and 
continuous,  without  regard  to  the  governing  person,  and  there  is  no 
interruption  of  the  authority  or  renewal  of  the  credentials  of  their 
public  n\inisters  on  a  change  of  President  for  whatever  cause,  provided 
such  President  continues  to  represent  and  exercise  the  appointing  po\\  cr 
of  the  Government. 

7  Op.,  582,  Cusliing,  1855.    See  infra,  §  316. 

The  convention  of  1804  with  the  United  States  of  Colombia  confers 
ou  the  commission  thereby  created  authority  to  decide  the  cases  which 
had  been  presented  within  the  time  specified,  and  which  had  not  been 
decided  by  the  commission  appointed  under  the  convention  of  1857,  and 
therefore  conferred  jurisdiction  to  determine  what  cases  had  been  pre- 
sented to,  but  not  decided  by,  the  old  commission. 

U  Op.,  402,  Speed,  1865. 

A  claim  was  duly  referred  to  the  board  of  commissioners  existing 
under  the  convention  of  September  10,  1857,  between  the  United  States 
and  New  Granada,  and,  agreeably  to  certain  provisions  of  said  conven- 
tion, was  afterwards  submitted  to  an  umpire,  who  reported  his  award 
during  the  existence  of  the  board.  The  case  was  afterwards  referred, 
without  the  claimant's  consent,  to  the  commission  constituted  under  the 
convention  of  February  10,  18G4,  with  the  United  States  of  Colombia, 
as  the  representative  of  the  late  Eepublic  of  New  Granada  for  the  ex- 
amination and  adjustment  of  such  claims  as  were  presented  to,  but  not 
settled  by,  the  previous  board.  It  was  held  that  the  umpire's  award 
was  a  valid  and  conclusive  ascertainment  of  the  claim  under  the  treaty 
of  1857,  and  that  the  United  States  should  ask  its  payment  from  Colom- 
bia. 

13  Op.,  19,  Hoar,  1869.     See  sujira,  $^  145,  220. 

The  act  establishing  the  Department  of  Justice  does  not  prohibit  the 
designation  by  the  President  of  an  advocate  on  the  part  of  the  United 
States  under  the  agreement  with  Spain  of  1871,  organizing  the  Amer- 
ican and  Spanish  Claims  Commission. 

13  Op.,  416,  Akerman,  1871.     See  supra,  $  161. 

As  to  barriug  claims  by  intermediate  arbitration,  settlement,  or  war,  see  infra, 
$$238,  240. 

The  following  documents  may  be  referred  to  in  this  connection: 

Report  iu  favor  of  establishing  a  court  for  settlement  of  claims  against  the 

United  States.     House  Rep.  812,  45th  Cong.,  2dses8. 
Report  in  favor  of  providing  a  judicial  tribunal  for  foreign  claims.    House 
Rep.  198,  46th  Cong.,  2d  sess.     Favorable  report  that  they  bo  taken  from 
Congress  and  sul)mittod  to  the  Court  of  Claims.     House  Rop.  GO,  47th  Cong. 
1st  sess. 

674 


CHAP.  IX.]  ENFOKCEMENT    OF    PAYMENT.  [§  222. 

As  has  been  seen  in  a  prior  section  (§  220)  the  Government  of  the 
United  States  is  not  precluded  by  the  award  of  an  arbitration  from 
refusing  to  press  a  claim  which  such  arbitration  approves. 

The  award  in  1873  of  the  British,  Italian,  and  United  States  com- 
missioners on  the  claims  of  British  subjects  against  the  United  States 
and  United  States  citizens  against  Great  Britain,  will  be  found  in  Brit, 
and  For.  St.  Pap.  for  1873-'74,  vol.  65. 

(5)   GOVEENMEKT  MAY  RESORT  TO  EXTREME  MEASURES  TO  ENFORCE  PAYMENT. 

§222. 

As  to  retorsion  and  reprisal,  see  infra,  ^  318. 

As  to  non-intercourse,  $  319. 

As  to  embargo,  $  320. 

As  to  display  offeree,  §  321. 

"  The  general  position  assumed  by  the  President,  and  ai^parently  sus- 
tained by  Judge  Wayne  and  others,  is,  that  whenever  a  nation  has  a 
claim  clearly  founded  in  justice,  as  that  in  question  undoubtedly  is,  and 
justice  is  denied,  resort  must  ultimately  be  had  to  war  for  redress  of  the 
iujury  sustained.  This,  as  an  abstract  proposition,  is  wholly  untenable, 
supported  neither  by  the  practice  of  nations  nor  by  common  sense.  The 
denial  of  justice  gives  to  the  offending  nation  the  right  of  resorting  to 
arms,  and  such  a  war  is  just  so  far  as  relates  to  the  offending  party.  But 
to  assert  that  a  nation  must  in  such  a  case,  without  attending  either  to 
the  magnitude  of  the  injury,  and  without  regard  either  to  its  own  im- 
mediate interest  or  to  political  considerations  of  a  higher  order,  affecting 
perhaps  its  foreign  and  domestic  concerns,  intiict  upon  itself  the  calam- 
ities of  w^ar,  under  the  penalty  of  incurring  disgrace,  is  a  doctrine  which, 
if  generally  adopted,  would  keep  the  world  in  perpetual  warfare,  and 
sink  the  civilized  nations  of  Christendom  to  a  level  with  the  savage  tribes 
of  our  forests." 

Mr.  Gallatin  to  Mr.  Everett,  Jan.,  1835.    2  Gallatin's  Writings,  494. 

The  proceedings  of  President  Jackson,  criticised  above,  in  pressing  the  payment 

of  the  French  indemnity  in  1835-'36,  are  detailed  infra,  $§  316  J'. 
The  action  of  the  British,  French,  and  Simnish  Governments  in  enforcing  their 

claims  on  Mexico  is  noticed  supra,  $  58 ;  infra,  $  232. 

Upon  the  refusal  of  the  Government  of  Buenos  Ayres  to  pay  a  debt  to  a 
citizen  of  the  United  States  which  the  Government  of  the  United  States 
claimed  to  be  justly  due,  the  minister  of  the  United  States  at  Buenos 
Ayres  was  instructed  "  to  insist  upon  an  arbitration  to  take  place  at 
this  city"  (Washington),  and  that  the  award  of  the  arbitrators  should 
be  final.  He  was  further  instructed  to  say  to  the  Government  of  Bue- 
nos Ayres  "  that  any  further  delay  on  its  part  in  facilitating  and  effect- 
ing its  final  settlement,  will  be  regarded  by  the  President  as  indicating 
but  a  slight  desire  to  do  justice  to  a  citizen  of  the  United  States,  and 
to  cultivate  and  promote  the  friendly  relations  which  so  happily  exist 
between  the  two  Governments." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Breut,  Mar.  3,  1845.     MSS.  lust.,  Arg.  Kcp. 

Seoitjd.  for  letter  from  Mr.  Clayton, Sec.  of  State,  toMr.  Harris,  Feb.  13,1H50. 

As  to  payment  in  Ilalscy'a  case,  soe  Mr.  Maroy  to  Mr.  Pcden,  July  3,  1854  ;  ihiil. 

As  to  arbitration,  sec  «j/^ra,  $221.     As  to  contraclual  claims,  bco  infra,  $'J231jr. 

r>75 


§  223.]  CLAIMS.  [chap.  IX. 

The  Cbinese  Governmeut  Laving  persistently  refused  to  pay  a  claim 
for  personal  injuries  to  a  citizen  of  the  United  States  which  it  admitted  to 
be  due,  the  United  States  minister  at  China  was,  iu  1855,  instructed, 
at  his  discretion,  "  to  resort  to  the  measure  of  withholding  duties  to  the 
amount  thereof." 

Mr.  Marcy,  Sec.  of  Slate,  to  Mr.  Parker,  Oct..'"),  1855.    MSS.  Inst.,  China.     Seo 

infra,  ^  318,  as  to  retorsion  and  reprisals. 
As  to  tlie  withdrawal  of  diplomatic  intercourse,  see  infra,  §  317. 

The  degree  of  indemnity  and  of  satisfaction  to  be  afibrded  to  the 
Government  of  the  United  States  for  injuries  to  citizens  of  the  United 
States  by  misconduct  of  the  Government  of  Japan,  must  be  in  some 
measure  left  to  the  action  of  the  minister  at  Japan. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Prnyn,  July  10, 18G3.     MSS.  Inst.,  Japan. 

In  such  cases,  when  the  injury  involves  also  an  insult  to  the  flag 
of  the  United  States,  the  demand  for  satisfaction  must  be  imperative, 
and  the  United  States  naval  force  at  Japan  may  not  only  be  used  to 
])rotect  the  legation  and  any  of  the  citizens  of  the  United  States  there 
resident,  but  the  Tycoon  is  to  be  informed  that  "the  United  States 
will,  as  they  shall  find  occasion,  send  additional  forces  to  maintain 
the  foregoing  demands." 

Mr.  Seward,  Sec.  of  State,  to  Mr,  Pruyn,  Sept.  1,  1865;  ibid. 

"The  rule  of  the  law  of  nations  is  that  the  Government  which  re- 
fuses to  repair  the  damage  committed  by  its  citizens  or  subjects,  to 
punish  the  guilty  parties,  or  to  give  them  up  for  that  purpose,  may 
be  regarded  as  virtually  a  sharer  in  the  injury  and  as  responsible 
therefor." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Aug.  15,  1873 ;  citing  Calvo  Int.  Law, 

vol.  ii,  p.  397.    MSS.  Inst.,  Mex. 
As  to  ]iacific  measures  to  obtain  redress,  see  infra,  $§  315  j^. 
As  to  war  measures,  see  infra,  j^^  3;)3^. 

IV.   CLAIMS  BASED  ON  WAR. 

(1)  A  SOVEKEIGN  IS  NOT  ORDINARILY  RESPONSIBLE  TO  ALIEN  RESIDENTS  FOR  IN- 
JURIES TEIEY  RECEIVE  ON  HIS  TERRITORY  FRO.M  BELLIGERENT  ACTION,  OR  FROM 
INSURGENTS  WHOM  HE  COULD  NOT  CONTROL,  OR  WHOM  THE  CLAIMANT  GOVERN- 
MENT HAD   RECOGNIZED   AS  BELLIGERENTS. 

§    223. 

The  mere  "revolutionary-  state  "of  a  part  of  Mexico  cannot  be  ac- 
cepted by  the  United  States  as  a  defense  to  a  claim  on  Mexico  for  in- 
juries inflicted  on  citizens  of  the  United  States  in  Mexico  in  violation 
of  treaty  engagements. 

Mr.  McLane,  Sec.  of  State,  to  Mr.  Butler,  June  '^0,  1834.     MSS.  Inst.,  Mex. 

A  citizen  of  the  United  States  who  became  domiciled  in  Nicaragua 
iu  185G,  when  the  country  was  in  a  state  of  war,  and  there  engaged  in 
57G 


CHAP.  VI. J  CLAIMS    BASED    OX    WAR.  [§  223. 

maiiuiactures  iu  the  seat  of  tumult,  and  was  attacked  by  a  party  of 
soldiers,  his  ptibon  iujured,  and  his  property  plundered,  was  held  not 
entitled  to  recover  from  Nicaragua  for  the  injury.  "  When  he  domiciled 
himself  in  Nicaragua  he  knew  that  the  liepublic  was  in  a  state  of  war, 
and  assumed,  therefore,  the  necessary  hazards  which  attend  the  resi- 
dence even  of  a  neutral  in  a  belligerent  country.  In  estimating  these  haz- 
ards he  probably  weighed  against  them  the  i^rotits  which  he  hoped  to 
derive  from  his  business,  and  if  he  has  been  disappointed  in  his  expecta- 
tions this  Government  can  only  lament  that  it  is  unable  to  afford  him 
any  remedy." 

Mr.  Cass,  Sec.  of  State," to  Mr.  Green,  Apr.  20,  1858.     MSS.  Dom.  Let. 

Whether  a  nation  is  responsible  for  spoliations  by  insurgent  author- 
ities which  for  a  time  obtain  possession  of  part  of  its  territory  depends 
upon  the  question  how  far  such  authorities  were,  iu  international  law, 
capable  of  binding  the  nation  by  their  acts. 

Mr.  Seward,  Sec.  of  State,  Eeport  Mar.  30,  18G1.    MSS.  Eeport  Book,  Dep.  of 
State. 

The  Government  of  the  United  States  cannot  be  responsible  to  the 
Government  of  France  for  sentences  imposed  on  French  citizens  by 
military  tribunals  iu  Xew  Orleans  iu  18G2. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Treilliard,  Oct.  11,  18(i2.     MSS.  Notes,  France. 

And  this  is  a  fortiori  the  case  when  such  persons  were  engaged  act- 
ively or  passively  in  the  insurrection. 
Same  to  same,  Xov.  3,  1862;   ihid. 

Nor  can  such  persons  claim  for  damages  sustained  by  them  from  the 
forcible  manumission  of  their  slaves  by  Federal  troops. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Mercier,  Nov.  8,  18G2 ;  ihid.     See  Mr.  Seward 

to  Mr,  Mercier,  Feb.- 24,  18G3,  ibid. ;  infra,  ^  243. 
As  to  case  of  Arbuthnot  and  Ambrister,  see  infra,  $  348a. 

"France,  by  recognizing  the  insurgents  as  belligerents,  may  be  ex- 
pected to  have  accepted  all  the  responsibility  of  that  measure,  and  to 
be  content  to  regard  her  subjects  domiciled  in  belligerent  territory  as 
identified  with  belligerents  themselves..  There  can  be  no  question  as 
to  the  applicability  of  this  rule  to  domiciled  merchants,  and  the  reasons 
for  its  applicability  to  that  class  seem  to  be  sufficient  for  it  to  embrace 
all  aliens  who  reside  in  an  enemy's  country  for  the  purpose  of  carrying 
on  business  of  any  kind." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Jan.  12,  18G4.     MSS.  Inst.,  France. 
That  recognition  of  insnrfjeiitH  as  belligerents  relieves  the  parent  state,  see 
supra,  5  GO. 

"It  is  believed  that  it  is  a  received  principle  of  public  law  that  the 

subjects  of  foreign  powers  domiciled  in  a  country  in  a  state  of  war  arc  not 

entitled  to  greater  privileges  or  immunities  than  the  other  inhabitants 

of  the  insurrectionary  district.     If,  for  a  supposed  i)urposo  of  tlu^  war, 

a.  Mis.  lO'J— VOL.  IT 'M  577 


§  223.]  CLAIMS.  [chap.  IX. 

one  of  tlie  belligerents  thinks  proper  to  destroy  neutral  property,  the 
other  cannot  legally  bo  regarded  as  accountable  therefor.  By  volun- 
tarily remaining  in  a  country  in  a  state  of  civil  war  they  must  be  held 
to  have  been  willing  to  accept  the  risks  as  well  as  the  advantages  of 
that  domicil.  The  same  rule  seems  to  be  applicable  to  the  property  of 
neutrals,  whether  that  of  individuals  or  of  Governments,  in  a  belliger- 
ent country.  It  must  be  held  to  be  liable  to  the  fortunes  of  war.  In 
this  conclusion  the  undersigned  is  happy  in  being  able  to  refer  the 
Austrian  Government  to  many  precedentsof  comparatively  recent  date, 
one  of  which,  a  note  of  Prince  Schwartzenberg,  of  the  14th  April, 
1850,  in  answer  to  claims  put  forward  on  behalf  of  British  subjects, 
who  were  represented  to  have  suffered  in  their  persons  and  property 
in  the  course  of  an  insurrection  in  Xaples  and  Tuscany." 

Mr.  Seward,  Sec.  of   State,  to  Mr.  Wydonbruck,  Nov.  IG,  ISGo.     MSS.  Notes, 

Austria. 
As  to  culpability  of  claimaut  in  such  cases,  see  infra,  §  243. 

"This  Government  has  not  as  yet  paid,  or  made  any  provision  for 
paying,  damages  to  neutrals  who  were  arrested  and  detained  during 
the  late  rebellion,  upon  information  and  suspicion  which  investigation 
proved  insufficient  to  warrant  a  continuance  of  such  restraint.  Having 
learned  by  our  own  experience  that  errors  of  this  sort  are  among  the 
unavoidable  incidents  of  civil  war,  and  the  legislative  authority  hav- 
ing reserved  for  itself  the  settlement  of  the  principles  upon  which  in- 
demnification shall  be  measured  and  granted  in  cases  where  it  shall  be 
found  justly  due,  this  Government  is  not  in  a  position  to  render  it  dis- 
creet tor  it  peremptorily  to  demand  vindictive  damages  from  a  friendly 
power  now  suffering  the  same  misfortune  of  internal  hostilities  from 
which  we  have  recently  found  deliverance." 

l\r.  Seward,  Sec.  of  State,  to  Mr.  Ed\Vards,  Feb.  27, 186i).     MSS.  Dom.  Let. 

The  mere  temporary  arrest  and  detention  of  a  citizen  of  the  United 
States  in  France  at  the  time  of  the  siege  of  Paris,  during  the  Franco- 
German  war  of  1871,  does  not,  bj'  itself,  give  ground  for  a  claim  against 
the  French  Government  unless  it  be  shown  that  the  arrest  was  without 
excuse  or  probable  cause.  "  Citizens  of  the  United  States,  in  common 
with  other  foreigners  who  were  unfortunate  enough  to  be  residents  of 
France  during  the  period  to  which  Mr.  H.'s  memorial  refers,  were  ren- 
dered liable  to  certain  inconveniences  which  seem  to  have  been  un- 
avoidable under  the  circumstances,  and  are  inseparable  from  a  condi- 
tion of  war  such  as  France  was  then  in.  Such  a  state  of  society  as  then 
existed  in  France  demanded  from  foreigners  who  were  at  the  time  resi- 
dent there  the  utmost  prudence  and  caution.  Whether  Mr.  H.  exer- 
cised such  prudence  does  not  clearly  ap])ear  from  thci  papers  which  he 
has  placed  on  file.  His  case  does  not  seem  to  present  any  feature  not 
common  to  the  cases  of  many  citizens  of  the  United  States  who  were 
578 


CHAP.  IX.]  CLAIMS    BASED    ON    WAR.  [§223. 

arrested  in  France  during  that  period,  on  similar  grounds  and  under 
circumstances  at  least  as  favorable  as  those  which  surrounded  Mr.  H." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Wasliburne,  Oct.  19, 1872.    MSS.  Inst.,  France. 

A  foreign  Government  may  be  liable  to  aliens  for  damages  inflicted 
by  insurgents  against  its  authority  whom  it  has  not  recognized  as  bel- 
ligerents, and  who  have  not  been  so  recognized  bj^  the  Government 
making  the  demand. 

Mr.  Davis,  Acting  Sec.  of  State,  to  Mr.  Pile,  July  28,  1873.  MSS.  Inst., Venez. 
This,  however,  assumes  that  the  insurrection  was  not  beyoud  the  control 
of  the  Government  in  whose  titular  territory  it  existed. 

"  If  a  country  receives  strangers  within  its  limits,  it  therebj'  incurs  a 
liability  to  protect  them  from  violence,  not  only  on  the  part  of  its  own 
authorities,  but  ordinarily  also  from  violence  on  the  part  of  insurgents. 
This  latter  ground  of  liability  may  be  regarded  as  continuing  at  least 
until  the  Government  of  a  neutral  country  whose  citizens  may  be  ag- 
grieved in  the  course  of  the  hostilities,  shall  recognize  the  insurgents 
as  entitled  to  belligerent  rights.  {Supra,  §  G9.)  There  was  no  such 
recognition  by  this  Government  at  the  time  when  the  claimants  ad- 
verted to  sustained  the  injuries  of  which  they  complain.  This,  how- 
ever, though  the  general  rule,  is  subject  to  obvious  exceptions.  Per- 
haps the  rule  should  not  always  applj^  to  persons  domiciled  in  a  coun- 
try, and  rarely  to  such  as  may  visit  a  region  notoriously  in  a  state  of 
civil  war,  or  ever  to  such  part  of  a  country  as  may  virtually  be  domi- 
nated by  savage  tribes." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Aug.  15,  1873.  MSS.  Inst.,  Mex. 

The  treaty  of  1831,  between  the  United  States  and  Mexico,  does  not 
by  itself  relieve  Mexico  from  liability  for  injury  inflicted  by  insurgents 
in  Mexico  on  citizens  of  the  United  States. 
Ibid. 

"  The  passage  from  Lord  Stanley's  speech  on  the  Pacifico  case,  which 
Calvo  quotes,  does  not  appear  to  give  the  support  to  the  position  of 
Mr.  Lafragua  which  he  seems  to  suppose.  His  lordship  says  he  does 
not  believe  that  Governments  are  obliged  to  the  full  extent  of  the  term  to 
indemnify  foreigners  who  may  have  suffered  damage  by  superior  force. 
This  Government  coincides  in  opinion  with  his  lordship.  There  are 
cases  in  which  there  may  be  no  accountability  on  the  part  of  the  Gov- 
ernment. The  loans  exacted  from  Mr.  Ulrich  and  Mr.  Langstroth  are 
not,  however,  regarded  as  a  case  of  that  character.  The  position  taken 
by  Austria  and  Kussia  in  respect  to  the  damages  sustained  by  British 
subjects  from  the  eflects  of  the  insurrection  in  Tuscany  in  1848,  and 
I)articularly  at  Leghc^rn,  to  which  Calvo  relers,  Jire  not  believed  to 
strengthen  the  position  of  Mr.  Lafragua.  It  is  true  that  Calvo,  in  this 
instance,  does  not  state  the  case  with  sullicient  fullness  to  enable  it  to 
be  easily  understood.     If,  however,  from  an  expressicm  in  the  paper  of 

570 


§  223.]  CLAIMS.  [chap.  IX. 

Count  Nesselrode,  which  is  referred  to,  it  may  be  inferred  that  the 
damages  were  sustained  in  the  recovery  bj'  the  Tuscan  Government  by 
ibice  of  arms,  of  its  possession  of  Le<;horn,  such  a  case,  also,  is  entirely 
different  from  the  exaction  of  the  forced  loans  in  the  one  under  con- 
sideration." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Dec.  10,  187:?.     MSS.  Inst.,  Mcx. 

"  It  is  true  that  this  Government  has  not  confessed  its  liability  for 
the  injuries  to  foreigners  by  persons  claiming  authority  in  the  South 
during  the  rebellion.  The  reason  for  this  disavowal  is  believed  to  bo 
as  strong  as  that  for  the  accountability  of  Mexico  in  the  other  case. 
Belligerent  rights  had  tacitly,  at  least,  been  granted  to  the  insurgents 
not  only  by  this  Government  but  by  those  of  the  principal  European 
nations.  Tbis  is  a  concession  which  may  be  allowed  to  carry  with  it 
an  acknowledgment  that  the  party  in  whose  favor  it  may  be  made  is 
both  competent  and  willing  to  do  justice  to  the  citizens  or  subjects  of 
the  grantor,  and,  indeed,  may  of  itself  be  allowed  to  exempt  the  other 
party  from  such  accountability.  This  Department  is  not  aware  that 
the  Mexican  Government  ever  acknowledged  the  belligerent  rights  of 
the  citizens  in  Xew  Leon.  It  is  believed  to  be  certain  that  they  were 
never  acknowledged  by  any  foreign  Government.     *     *     * 

"It  may  be  repeated  that  this  Government  has  not  acknowledged  its 
accountability  for  injuries  to  foreigners  by  insurgents  during  the  late 
civil  war  in  this  countiy.  In  this  it  is  regarded  as  justified  by  the 
u)agnitude  of  that  conflict,  and  especially  by  the  fact  that  the  foreign- 
ers who  were  so  injured  are  citizens  or  subjects  of  countries  who  ac- 
knowledged the  insurgents  as  belligerents." 

*     Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Dec.  IC,  187:5.     MSS.  Inst.,  Mex. 

"  The  resort  to  such  measures  as  were  adopted  by  the  forces  of  the 
Haytian  Government  to  suppress  the  local  revolt  against  the  Govern- 
ment and  the  laws  may  have  been,  and  no  doubt  was,  in  the  estimation 
of  the  Ilaytian  Government,  entirely  justifiable,  and  this  Government 
has  no  disposition  to  question  the  correctness  of  this  view  as  to  these 
precautionary  municipal  measures;  but  it  follows,  nevertheless,  that 
the  Government  is  answerable  for  the  destruction  of  private  property 
which  may  have  been  necessarily  sacrificed  to  the  success  of  such  meas- 
ures. It  is  because  of  the  recognition  by  this  Government  of  the  neces- 
sities that  such  emergencies  give  rise  to  that  it  limits  the  demand  in 
the  present  instance  to  compensation  for  actual  losses." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lan;?stou,  July  1,  18S1.     MSS.  Inst.,  Hayti. 
Mr.  Fish's  report  of  May  15,  1871,  giving  the  reports  of  Mr.  Whiting,  Solicitor 

of  the  War  Department,  on  claims  by  aliens  for  damages  iu  the  civil  war 

is  in  Senate  Ex.  Doc.  2,  4'^(1  Cong.,  .special  sess. 
Mr.  Lawrence's  report  on  war  claims  of  aliens  is  fonn«:l  iu  House  Rep.  26:2,  4:5d 

Cong.,  Ist  sess. 

580 


CHAP.  IX.]  CLAIMS    BASED    ON    WAR.  "[§223. 

''According  to  the  laws  aud  usages  of  nations,  a  state  is  not  obliged 
to  make  compensation  for  damages  done  to  its  citizens  by  an  enemy  or 
wantonly  or  unauthorized  by  the  troops." 

Eeport  of  Mr.  Hamilton,  Sec.  of  Treas.,  Nov.  19,  1792;  Am.  St.  Pap.,  Class  IX, 
vol.  i,  of  claims;  adopted  in  report  of  March  26,  1874,  onvrar  claims,  House 
Rep.  262,  43d  Cong.,  Ist  sess. 

The  correspondence  with  Great  Britain  as  to  the  bombardment  of  the  fortress 
of  Omoa,  Honduras,  by  the  British  ship  of  war  Niobe,  on  Aug.  19  and  20, 
1873,  is  given  in  the  Brit,  and  For.  St.  Pap.  for  1875,  '76,  vol.  67. 

The  United  States  Government  is  not  liable  for  loss  to  Peruvian  cit- 
izens caused  by  the  destruction  of  their  property  on  board  a  ship  in  Ches- 
apeake Bay,  in  18G2,  such  destruction  being  effected  by  a  sudden  attack 
of  insurgents,  which  could  not  by  due  diligence  have  been  averted  by 
the  Government  of  the  United  States. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Barreda,  Jan.  9,  1863.     MSS.  Notes,  Peru. 

A  Government  is  liable  internationally  for  injury  inflicted  on  aliens 
through  its  negligence  in  permitting  insurgents  to  destroy  the  property 
of  such  aliens  aud  by  its  subsequent  implied  ratification  of  the  conduct 
of  such  insurgents,  there  being  no  redress  offered  in  the  courts  of  such 
Government. 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  Baher,  Apr.  18,  1884.  MSS.  Inst., 
Venez.     See  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Baker,  May  12,  1885 ;  ibid. 

"However  severe  may  have  been  the  claimant's  injuries,  it  must  be 
recollected  that  like  injuries  are  committed  in  most  cases  where  towns 
are  sacked,  and  that  aliens  resident  in  such  towns  are  subject  to  the 
same  lo.^ses  as  are  citizens.  It  has  never  been  held,  however,  that  aliens 
have  for  such  injuries  a  claim  on  the  belligerent  by  whom  they  are  in- 
flicted. On  the  contrary  the  authorities  lay  down  the  general  jirinciple 
that  neutral  property  in  belligerent  territory  shares  the  liabilities  of 
property  belonging  to  subjects  of  the  state." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  O'Connor,  Oct.  29,  1885.    MSS.  Dom.  Let. 

"This  Department  in  its  instructions  to  our  ministers  at  those  courts 
which  recognized  the  Southern  insurgents  as  belligerents,  has  main- 
tained that  those  nations,  after  such  recognition,  must  be  content  to 
have  their  subjects  who  were  domiciled  as  merchants  in  belligerent 
territory  considered  as  belligerents,  and  the  same  argument  would  em- 
brace all  aliens  residing  in  an  enemy's  country  for  business  purposes 
or  represented  by  agents  there." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  xlo  Murii:ig;i,  Juno  28,  1886.  MSS.  Notes, 
Spain.     Sfc  Ap]).,  vol.  iii,  ?  223. 

"In  July,  1804,  a  question  was  raised  as  to  the  i)ositi()n  of  British 
subjects  residing  at  Memphis,  United  States,  then  under  martial  law, 
an(l  Lord  Lyons  was  instructed  to  iiifonn  them  (hat  Great  Britain  would 
not  interfere  with  the  operation  of  that  law  in  a  foreign  state,  and  that 
I>ritish  subjects  who  wished  to  secure  liiitish  iMotection  must  discon- 

oSi 


§  224.]  CLAIMS.  [chap.  IX. 

t  iuuc  tbeir  residence  in  i)laces  under  sticli  military  control.    Pari.  Papers, 
No.  363.  18G4." 

1  Halleck's  lut.  Law  (Baker's  cd.),  ool.  That  alious  must  submit  to  martial 
law,  see  2  id.,  455. 

In  such  cases  necessity  is  a  defense.  "It  is  not  to  be  doubted  that 
there  are  cases  in  which  private  property  may  be  taken  lor  a  public  use 
without  the  consent  of  the  owner,  and  without  any  provision  of  law  for 
making  compensation.  There  are  cases  of  urgent  ])ublic  necessity, 
which  no  law  has  anticipated,  and  which  cannot  await  the  action  of  the 
legislature.  lu  such  cases  the  injured  individual  has  no  redress  at  law. 
Those  who  seize  the  property  are  not  tresi)assers,  and  there  is  no  relief 
for  him,  but  by  petition  to  the  legislature;  for  example,  the  pulling 
down  of  houses  and  raising  bulwarks  for  the  defense  of  the  state  against 
an  enemy,  seizing  corn  and  other  provisions  for  the  sustenance  of  an 
army  in  time  of  war,  or  taking  cotton  bags,  as  General  Jackson  did  at 
New  Orleans,  to  raise  ramparts  against  an  invading  foe." 

Parbam  r.  Justices,  9  Ga.,  341.  See  to  same  effect,  Taylor  v.  Plymoutb,  8  Mete., 
465;  Russell  r.  Now  York,  2  Deuio,  473;  Britisb  Plato  Co.  v.  Mereditb,  4 
Term.  E.,  796;  and  otber  cases  cited  Wbartou  on  Negligence,  $$126,127. 

As  to  necessity,  see  furtber,  supra,  $§  38,50. 

That  the  British  loyalists  who  suffered  pecuniary  loss  through  the 
casualties  of  war  during  the  American  IJevortition  had  no  claim  on  the 
United  States,  under  the  law  of  nations,  for  redress  was  admitted  by 
Mr.  Pitt,  June  3,  1785,  in  the  House  of  Commons.  (27  Hansard's  Pari. 
Hist.,  C10,G1«S.)  The  same  point  was  deteirained  by  the  British  American 
Claims  Commission.  (See  House  Pep.  2G2,  43d  Cong.,  Istsess.)  {Infra, 
§338.) 

A  neutral's  residence  in  an  enemy's  country  exposes  his  property  to 
enemy's  risks.     {Infra,  §  352.) 

(2">  Nor  for  acts  of  legitimate  warfare  waged  by  iiim  ox  his  exemy's  soil. 

§224. 

As  to  wbat  warfare  is  "  legitimate,"  see  infra,  $$  .347  ff. 

As  to  effect  of  neutral's  residence  in  belligerent  country,  see  infra,  $  352. 

"No  power  assailing  an  enemy's  country  is  required  to  discriminate 
between  the  subjects  of  that  country  and  foreigners  domiciled  therein, 
nor  can  the  latter  with  any  better  right  than  the  former  claim  indem- 
nity in  any  case,  except  from  the  country  under  whose  jurisdiction  they 
have  placed  themselves.    *     *     * 

"If  the  sovereign  power  of  a  country  acquiesces  in,  and  apparently 
approves  of,  the  chastisement  by  a  foreign  i)ower  of  those  under  its  pro- 
tection, it  certainly  will  not  be  concluded  that  the  suflerers  by  that 
chastisement  are  entitled  to  indemnity  from  that  foreign  power  for 
losses  thereby  sustained." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Sartiges,  Feb.  26,  1857.     MSS.  Notes,  France. 

A  mere  transient  foreign  resident  of  a  bombarded  city  cannot,  if  the 

bombardment  were  in  due  course  of  war,  recover  from  the  bombarding 

power  damages  for  injuries  sustained  by  him  during  the  bombardment; 

a  fortiori  he  cannot  when  he  was  domiciled  in  the  bombarded  city. 

582 


CHAr.  IX.]  CLAIMS    BASED    ON   WAR.  [§  224. 

Wbeu  tlie  property  of  British  subjects  iu  Antwerp  was  destroyed  in 
1830  by  the  Dutch  bombardment,  it  was  held  by  the  British  Govern- 
ment, after  consulting  the  attorney-general,  that  the  "Dutch  Govern- 
ment was  not  liable  for  the  disasters  occasioned  by  the  bombardment." 
"  This  conclusion  was  adopted  by  all  the  powers  whose  citizens  had 
property  destroyed  at  Antwerp."  It  was  held  by  these  powers  that 
Belgium  was  liable  for  the  injuries.  The  same  view  was  taken  as  to 
the  injuries  inflicted  in  the  course  of  war  on  American  property  in  Na- 
ples in  1807. 
Ibid. 

"  The  Court  of  Claims,  adopting  the  language  of  my  predecessor, 
Mr.  Seward,  has  decided  it  to  be  the  law  and  usage  of  nations  that  one 
who  takes  up  a  residence  iu  a  foreign  place  and  there  suffers  an  injury 
to  his  property  by  reason  of  belligerent  acts  committed  against  that 
place  by  another  foreign  nation,  must  abide  the  chances  of  the  country 
in  which  he  chooses  to  reside ;  and  his  only  claim,  if  any,  is  against  the 
Government  of  that  country,  in  which  his  own  sovereign  will  not  inter- 
est himself.  Such  has  been  the  doctrine  and  practice  of  the  United 
States  and  of  the  great  powers  of  Europe;  and  this  Government,  there- 
fore, cannot  intervene  in  behalf  of  Mr.  Fongen,  or  of  any  citizen  of  the 
United  States  under  the  same  circumstances." 

Mr.  Fish,  Sec.  of  State,  to   Mr.  Wasliburne,  Apr.  28, 1871.    MSS.  Inst., France; 
For.  Eel.,  1871.     See  infra,  $  352. 

"  Your  letter  of  March  19, 1871,  to  the  President  of  the  United  States, 
in  reference  to  the  spoliation  of  the  property  of  your  father,  who  ap- 
pears to  have  been  domiciled  and  to  have  owned  real  estate  iu  France, 
by  German  soldiers,  has  been  referred  to  this  Department. 

"  In  reply,  I  have  to  say  that  this  Government  is  not  in  a  position  to 
dissent  from  the  view  recently  announced  in  a  similar  case  by  the  Brit- 
ish Government  in  the  following  terms : 

'• '  Her  Majesty's  Government  do  not  consider  that  in  strict  right  they 
would  be  entitled  to  claim  compensation  from  the  Prussian  Government 
for  the  destruction  of  Mr.  Smith's  property,  as  it  would  seem  that 
though  an  Englishman  he  has  become  the  proprietor  of  a  house  and 
farm  at  St.  Owen  and  has  established  his  wife  and  family  there,  by 
which  proceeding  he  has  so  incorporated  himself  into  the  territory  of 
France  as  to  render  it  unavoidable  that  his  family  and  property  should 
be  exposed  like  those  of  native  citizens  of  France  resident  in  the  same 
district,  to  the  evils  incident  on  a  state  of  war.'" 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Duncan,  Blay  IG,  1871.     MSS.  Dom.  Let. 

"  Wlien  one  ])ower,  in  the  exercise  of  its  sovereign  rights,  deems  it 
proper  to  exercise  acts  of  hostility  against  thc^  territory  of  another 
power,  the  citizens  of  foreign  states,  residing  within  the  arena  of  war, 
wliose  property  may  liav(5  Vx-cn  injnied  or  destroyed  dining  (he  war, 
liave  no  right  to  demand  com[iensati<)n,  on  the  ground  of  their  being 

583 


§  224]  CLAIMS.  [chap.  IX. 

citizens  of  a  tliird  power,  for  losses  Mbicli  the  necessities  of  war  bring 
upon  tliem  in  coiumou  Mith  the  citizens  of  the  State  invaded." 
Mr.  Fish,  Sec.  of  State,  to  Mr.  Niles,  Oct.  30, 1871.    MSS.  Dom.  Let. 

The  United  States  Government  cannot  be  made  liable  to  Italy  for  in- 
juries inflicted  in  January,  18GG,  on  Italians  resident  in  Mexico,  by  i)er- 
sons  claiming  to  be  soldiers  of  the  United  States  acting  under  request 
of  the  Mexican  Republic.  The  remedy,  if  any,  must  be  sought  from 
Mexico. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Corti,  Dec.  9,  1872.     MSS.  Notes,  Italy. 

Nor  is  the  United  States  Governm  ent  liable  for  the  collateral  depre- 
dations of  United  States  soldiersat  such  time. 

Hid. 

''  I  am  not  aware  of  any  principle  of  public  law  by  which  either  of 
the  belligerents  is  held  bound  to  indemnify  or  make  reparation  to  the 
owners  of  property  destroyed  in  the  necessary  prosecution  of  hostile 
operations. 

'•  Nor  does  the  fact  that  Mr.  Eavenscroft  is  a  subject  of  Great  Britain 
in  any  way  affect  his  claim  to  compensation  ;  being  a  resident  within 
the  seat  of  war  at  the  time  of  his  alleged  losses,  he  was  equally  with  the 
citizens  of  the  country  subject  to  the  fortunes  and  incidents  of  war. 
Earl  Granville,  with  his  usual  clearness,  applies  this  principle  to  the 
case  of  Mr.  Kirby,  an  English  gentleman,  residing  at  La  Forte,  Imbault, 
in  France,  during  the  late  Franco-German  war.  The  German  forces 
had  appropriated  much  of  that  gentleman's  property  for  military  pur- 
poses, and  he  sought  the  interposition  of  his  own  Government,  to  en- 
able him  to  obtain  compensation  or  indemnity  for  his  losses.  Lord 
Granville  replies  to  his  application  by  saying  that  'it  is  out  of  their  (the 
Government's)  power  to  interfere  to  obtain  any  redress  for  him,  inas- 
much as  foreigners  residing  in  a  country  which  is  the  seat  of  war  are 
equally  liable  with  the  natives  of  the  country  to  have  requisitions  lev- 
ied on  their  property  by  the  belligerents.'  In  another  case  his  lordship 
says  '  that  her  Majesty's  subjects,  resident  in  France,  whose  property  has 
been  destroyed  during  the  war,  cannot  expect  to  be  compensated  on 
the  ground  of  their  being  British  subjects  for  losses  which  the  neces- 
sities of  war  have  brought  upon  them  in  common  with  French  subjects.' 
And  in  still  another  case,  that  of  the  English  residents  at  Chantilly,  his 
lordship  instructs  Mr.  Odo  Eussell,  in  presenting  their  case  for  the 
consideration  of  the  Emperor  of  Germany,  to  state  '  that  Her  Majesty's 
Government  make  no  claim  for  the  petitioners  to  be  exempted,  as  Brit- 
ish subjects,  from  the  evils  incident  to  a  state  of  war,  towhich  all  other 
persons,  resident  in  France,  are  exposed.' 

"  These  views  are  in  full  accord  with  the  long-established  and  well 
understood  rules  which  the  necessities  and  exigencies  of  war  give  rise 
to.  However  much  they  may  be  modified  in  i)rnctice  by  the  cnlight- 
584 


CHAP.  IX.]  CLAIMS    BASED    ON    WAR.  [§224. 

ened  aud  buiuaue  spirit  of  modern  times,  the  rules  wliicli  goveru  tlie 
conduct  and  rights  of  belligerents  in  such  emergencies  are  not  changed." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Thoruton,  May  IC,  1873.     MSS.  Notes,  Gr.  Brit. 
Keafifirmed  in  same  to  same,  Oct.  6,  1873.   Tbid. 

"  The  facts  aud  circumstances  were  then  carefully  examined ;  and  in 
replying  to  Mr.  Duncan,  on  the  IGth  of  May,  1871,  I  took  occasion  to 
state  that  this  Government  was  not  in  a  position  to  dissent  from  the 
view  then  recently  announced  by  the  British  Government  in  the  follow- 
ing terms  :  (See  quotation,  snpra,  in  this  section). 

"  The  principle  thus  admitted  by  the  British  Government  with  ref- 
erence to  their  own  subjects,  this  Government  has  had  occasion  to  apply 
to  claims  of  a  similar  character  preferred  by  citizens  of  other  powers, 
who  were  domiciled  in  the  United  States  during  our  own  late  war.  The 
doctrine  is  one  long  established  and  universally  recognized,  and  no  good 
reason  is  perceived  for  departing  from  it  in  the  present  instance." 

Mr.  Fisla,  Sec.  of  state,  to  Mr.   Gibson,  Deo.  30,1875.     MSS.Dom.Let.     This 
position  is  approved  in  2  Halleck  Int.  Law,  (Bakers  ed.,)  179. 

"  In  regard  to  the  law  applicable  to  the  bombardment  of  unfortified 
places,  permit  me  to  refer  you  to  the  opinion  of  Attorney-General  Henry 
Staubery,  of  the  31st  of  August,  1866,  relative  to  the  bombardment  of 
Valparaiso  by  the  Spaniards.  A  manuscript  copy  of  the  paper  is  here- 
with transmitted  to  iirovide  for  the  contingency  of  your  not  having  a 
printed  one." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Christiaucy,  June  18,  1879.     MSS.  Inst.,  Peru. 
Document  in  message  of  President,  of  Jan.  2C,  1882. 

[Inolosure  in  above.] 

Attorney-Gexeral's  Office, 

August  31, 1SG6. 

Sir  :  It  appears  from  your  letter  of  the  27th  [21th]  instant  that  the 
American  comtnercial  houses  of  Wheelwright  &  Co.  aud  Loriug  &  Co., 
dom.iciled  for  commercial  purposes  at  Valparaiso,  sustained  losses  of 
their  merchandise  in  the  conflagration  caused  by  the  bombardment  of 
that  city  by  the  Spanish  fleet  ou  the  31st  of  March  last. 

Tlie  question  presented  for  my  opinion  is,  whether  a  case  is  made  for 
the  intervention  of  the  United  States  on  behalf  of  these  citizens  for 
indemnity  against  Spain  or  Chili  ? 

I  do  not  see  any  ground  upon  which  such  intervention  is  allowable  in 
respect  to  either  of  those  Governments. 

The  bombardment  was  in  the  prosecution  of  an  existing  war  between 
Spain  and  Chili.  Although,  under  the  circumstances,  it  was  a  measure 
of  extreme  severity,  yet  it  cannot  be  said  to  have  been  contrary  to  the 
laws  of  war,  nor  was  it  unattended  with  the  ])i'eliminary  warning  to 
non-combatants  usual  in  such  cases. 

It  does  notai)pear  that  in  c;inyingon  th«^  bombardment  any  discrim- 
ination was  made  against  resident  Ibreignerscn-  their  i)ro[)erty.  On  the 
contrary,  there  was  at  least  an  attempt  toconiine  the  damage  to  public 
])roperty. 

Then,  as  to  the  Chilian  authorities,  it  does  not  appear  that  they  did 
or  omitted  any  act  lor  which  our  citizens  there  domiciled  have  a  right 

685 


§  224.]  CLAIMS.  [CIIAP.  IX. 

to  complaiu,  or  that  the  measure  of  piotoctioii  they  were  bound  by 
public  hiw  to  exteud  to  those  citizens  and  Iheir  proi)erty  was  withheld. 

Is'o  defense  was  made  against  the  bombardment,  for  that  would  have 
been  fruitless,  and  would  have  ag<iravated  the  dama.ii"e,  as  Valparaiso 
was  not  then  fortifie<l,  and  no  discrimination  was  made  by  those  author- 
ities bt'tween  their  own  citizens  and  foreigners  there  domiciled.  All 
shared  alike  in  the  common  disaster. 

The  rule  of  international  law  is  well  established  that  a  foreigner  who 
resides  in  the  country  of  a  belligerent  can  claim  no  indemnity  for  losses 
of  i)roi)erty  occasioned  by  acts  of  war  like  the  one  in  qnestion. 

The  bombardment  of  Copenhagen  by  the  British  in  1S07  is  a  notable 
illustration  of  this  rule.  Immense  losses  were  sustained  by  foreigners 
domiciled  in  that  city.  There  was  no  previous  declaration  of  war 
against  Denmark,  and  no  reasonable  ground  upon  which  the  bombard- 
ment could  be  justified,  and  yet  no  reclamation  upon  the  footing  of 
these  losses  was  ever  admitted  bj'  Great  Britain.  The  bombardment  of 
Greytown,  in  May,  1854,  by  the  United  States  sloop  of  war  Cyane,  is 
another  instance  of  this  rule.  Losses  were  sustained  by  French  citizens 
there  domiciled,  from  the  fire  of  the  Cyane.  A  petition  to  the  United 
States  from  those  parties  for  indemnity  was  presented  through  the 
French  minister,  then  resident  at  Washington,  but  without  the  express 
sanction  ot  his  Government.  Upon  full  consideration  this  petition  was 
refused.  Mr.  Marcy,  then  Secretary  of  State,  in  answer  to  the  claim, 
holds  the  following  language:  "  The  undersigned  is  not  aware  that  the 
principle  that  foreigners  domiciled  in  a  belligerent  country  must  share 
with  the  citizens  of  that  country  in  the  fortunes  of  war,  has  ever  been 
seriously  controverted  or  departed  from  in  practice." 

I  have  therefore  to  repeat  that  I  am  of  opinion  no  ground  is  laid  for 
the  intervention  of  the  United  States  in  favor  of  these  parties. 
I  am,  &c., 
Hon.  Wm.  H.  Seward,  HENRY  STANBERY. 

Secretary  of  State. 
For  Mr,  Seward's  letter  to  Mr.  Stanbery,  see  ivfra,  $  225. 

"An  examination  of  the  case  of  Mr.  John  Calvocoressi  with  a  view 
to  giving  you  the  further  instructions  asked  in  your  Ko.  88,  of  the  14th  of 
April  last,  has  been  deferred  through  press  of  urgent  business  until  now. 

"  Your  conclusion  that,  as  a  matter  of  right,  the  presentation  of  tho 
case  to  the  Russian  Government,  as  reported  by  you,  is  now  complete, 
is  regarded  as  sound.  As  a  principle  of  international  law,  the  view  that 
a  foreigner  domiciled  in  the  territory  of  a  belligerent  cannot  expect 
exemption  from  the  operations  of  a  hostile  force,  is  amply  sustained  by 
the  precedents  you  cite,  and  many  others.  Great  Britain  admitted  the 
doctrine  as  against  her  own  subjects  residing  in  France  during  the 
Franco-Prussian  war;  and  we,  too,  have  asserted  it  successfully  against 
similar  claims  of  foreigners  residing  in  the  Southern  States  during  the 
war  of  secession. 

"Nevertheless,  considering  that  San  Stefano  was  not  the  scene  of 
active  hostilities  which  would  justify  the  ai)parently  wanton  damages 
done  to  the  property  of  Mr.  Calvocoressi,  and  that  the  lengthy  occu- 
pation of  his  dwelling  was  for  the  discretional  convenience  of  the  Rus- 
sian ofiicers  rather  than  from  any  strategic  necessity  or  urgent  military 
purpose,  and  therefore  was  of  a  nature  for  which  compensation  is, 
686 


CHAP.  IX.]  CLAIMS    BASED    ON    WAR.  [§  224. 

according  to  the  usages  of  war,  generally  allowed  by  military  com- 
manders, the  claim  is  deemed  a  proper  one  to  submit,  as  you  have 
already  done,  to  the  sense  of  equity  and  fair  dealing  of  the  Government 
of  His  Imperial  Majesty,  and  it  is  hoped  that  it  will  have  received 
favorable  consideration  before  this  reaches  you.  Should  the  Eussian 
chancellor,  however,  reply,  denying  responsibility,  as  of  right,  for  the 
military  occupation  of  Mr.  Calvocoressi's  dwelling,  you  will  briefly 
urge  the  claim  as  one  of  equity.  Tou  will,  however,  take  no  action 
upon  this  instruction  unless  a  negative  reply  of  the  Eussian  Govern- 
ment should  make  it  opportune  to  act  in  the  sense  indicated." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Hoffman,  July  18,  1879.     MSS.  lust.,  Russia; 
For.Rel.,  1879. 

"  The  property  of  alien  residents,  like  that  of  natives  of  the  country, 
when  '  in  the  track  of  war,'  is  subject  to  war's  casualties,  and  whatever 
in  front  of  the  advancing  forces  that  either  impedes  or  may  give  them 
aid  when  appropriated,  or  which,  if  left  unmolested  in  their  rear,  might 
afford  aid  and  comfort  to  the  enemy,  may  be  taken  or  destroyed  by  the 
armies  of  either  of  the  belligerents,  and  no  liability  whatever  is  under- 
stood to  attach  to  the  Government  of  the  country  whose  flag  that  army 
bears,  and  whose  battles  it  may  be  fighting,  and  when  actual,  positive 
war  is  in  progress  the  commander  of  the  armies  in  the  field  must  be  the 
judge  of  the  existing  exigencies  and  necessities  which  dictate  such  ac- 
tion. This  is  believed  to  be  the  universal  rule  at  the  present  day;  it 
is  that  which  has  been  followed  by  the  Governments  of  Europe  in  re- 
cent wars.  In  the  case  of  the  Franco-Prussian  war  of  1870-'71,  Earl 
Granville,  then  Secretary  of  State  for  foreign  affairs  of  Great  Britain, 
adhered  to  this  rule  in  regard  to  British  subjects  resident  in  France 
during  the  time  of  the  Prussian  invasion  of  France,  and  it  is  known 
that  British  subjects  then  resident  in  France,  and  who  were  in  the  track 
of  the  war,  lost  property  to  the  amount  of  many  millions  of  dollars. 

"  In  the  late  civil  war  in  this  country,  that  from  which  Mr.  Melebeck 
deduces  his  claim,  that  rule  has  been  followed  in  the  case  of  natives  of 
the  country  who  were  in  sympathy  with  the  rebel  cause,  and  aliens  who 
had  remained  voluntary  residents  of  any  of  the  States  in  rebellion,  dur- 
ing the  prosecution  of  the  war." 

Mr.  Freliughuysen,  Sec.  of  State,  to  Mr.  Bouuder  do  Melsbroeck,  Apr.  17, 1883. 

MSS.  Notes,  Belgium. 
As  to  claim  of  inhabitants  of  East  Florida  for  depredations  by  troops  of  the 
United  States  in  1812,  see  House  Report  of  Mr.  Forsyth,  March  10,  182G, 
House  Doc.  422,  19ch  Cong.,  1st  sess.  ;  5  Am.  St.  Pap.  (For.  Rel.),  829. 
As  to  Battcrsly's  claim  against  the  United  States  for  seizure  of  his  cotton  at 
Savannah  during  the  civil  war,  see  adverse  report,  May  31,  1876,  Senate 
Rep.  345,  44th  Cong.,  Ist  sess. 
As  to  claim  against  United  States  for  seizure  of  property  of  W.  Tabb,  by  the 
military  authorities  during  the  civil  w.ar,  he  being  an  alien  who  had  de- 
clared Ills  intentions  l)efon:  the  origin  of  the  claim,  see  report  favoring  the 
subniission  to  Court  of  Claims,  House  Rep.  109,  44tb  Cong.,  2d  bchh.,  favor- 
able nstiort.    Senate  Ken.  .^j19,  4rith  Cong.,  Ist  sess. 

.  687 


§  224a.]  CLAIMS.  [chap.  ix. 

In  Eesp.  V.  Sparbawk,  1  Dall.,  3G2,  it  was  held  that  a  party  whose 
property,  under  the  direction  of  the  Continental  Congress,  had  been  re- 
moved during  the  war  to  prevent  it  falling  into  the  enemy's  hands, 
could  not  obtain  compensation  from  the  commonwealth,  such  property 
having  been  afterwards  captured  bj'  the  enemy. 

Property  left  in  a  hostile  country  by  an  owner  who,  abandoning  such 
country,  returns  to  his  proper  allegiance,  becomes,  unless  a  prompt 
eflbrt  is  jnade  to  remove  it,  impressed  with  a  hostile  character,  and  is 
liable  to  the  consequences  attaching  to  enemy's  property. 

The  "Williaui  Baguley,  5  Wall.,  377;  infra,  ^  353. 

When  the  British  invaded  Casline,  in  the  State  of  Maine,  the  com- 
mander of  the  United  States  ship  Adams,  then  lying  in  that  port,  burnt 
his  vessel  to  prevent  her  from  falling  into  the  hands  of  the  enemy. 
The  lire  was  communicated  to  a  neighboring  warehouse,  in  which  valu- 
able property  was  destroyed,  for  which  a  claim  was  made  against  the 
Government.  It  was  advised  that  the  destruction  was  a  casualty  of 
war  resulting  from  exi)0sure,  and  that  the  Government  was  not  liable. 

1  Op.,  255,  Wirt,  1619. 

The  destruction  of  goods  by  a  public  enemy  does  not  release  the 
owner  from  the  payment  of  duties  that  have  become  due  by  law. 

1  Op.,  2G9,  Wirt,  1819. 

American  merchants,  domiciled  for  commercial  purposes  at  Valpa- 
raiso, cannot  sustain  a  claim  for  indemnity  against  Spain  or  Chili  for 
losses  of  merchandise  caused  by  the  bombardment  of  Valparaiso  by 
the  Spanish  fleet  in  March,  186G. 

12  Op.,  21,  Stanbery,  1866,  quoted  siipra  in  full. 

(3)  Grkytowx  bombardment. 
§  224. 
For  attack  on  the  Pronietlieus,  prior  to  the  attack  on  Greytown,  see  infra,  ^  315(7. 

In  1853,  after  a  series  of  spoliations  of  citizens  of  the  United  States 
by  inhabitants  of  San  Juan  (Greytown)  with  the  connivance  of  the 
authorities  of  that  place,  and  after  gross  indignities  to  a  diplomatic 
agent  of  the  United  States  theu  at  Greytown,  the  property  of  the  "Ac- 
cessory Transit  Company,"  owned  largely  by  citizens  of  the  United 
States,  was  attacked  and  plundered  by  the  same  aggressors  at  Punta 
Arenas,  near  Greytown.  Captain  Ilollins,  commanding  the  United 
States  war  ship  Cyane,  interfered  for  the  protection  of  the  company, 
and  after  due  warning  to  the  town,  bombarded  it,  and  afterwards  sent 
on  shore  a  corps  of  marines,  so  as  to  compel  submi.s.'iion  and  inflict 
fha.stisement.    This  course  was  sustained  by  the  Government  of  the 

588 


OHAP.  IX.]  CLAIMS  BASED  ON  WAR.  [§  224a. 

United  States,  there  being  proof  that  the  place  was  held  by  "  a  horde 

of  marauders,"  who  greatly  disturbed  transit  over  the  Isthmus. 

Mr.  Marcy,  Sec.  of   State,  to  Mr.  lugersoll,  June  9,  1853.     MSS.  Inst.,  Gr.  Brit. 
Mr.  Marcy  to  Mr.  Buclianan,  Aug.  8,  1854.     Ibid.     See  further,  supra,  §  50rf.     As 
to  Greytown  and  Mosquito  coast,  see  further,  supra,  $§  150 ^T;  infra,  $295. 

"  So  soon  as  the  necessity  was  perceived  of  establishing  interoceanic 
communications  across  the  Isthmus,  a  company  was  organized,  under 
authority  of  the  State  of  Nicaragua,  but  composed  for  the  most  part  of 
citizens  of  the  United  States,  for  the  purpose  of  opening  such  a  transit 
way  by  the  rive-r  San  Juan  and  Lake  Nicaragua,  which  soon  became 
an  eligible  and  much-used  route  in  the  transportation  of  our  citizens 
and  their  property  between  the  Atlantic  and  Pacific.  Meanwhile,  and 
in  anticipation  of  the  completion  and  importance  of  this  transit  way  a 
number  of  adventurers  had  taken  possession  of  the  old  Spanish  port  at 
the  month  of  the  river  San  Juan,  in  open  defiance  of  the  state  or  states 
of  Central  America,  which,  upon  their  becoming  independent, had  right- 
fully succeeded  to  the  local  sovereignty  and  jurisdiction  of  Spain. 

"These  adventurers  undertook  to  change  the  name  of  the  place  from 
San  Juan  del  Norte  to  Greytown,  and,  though  at  first  pretending  to  act 
as  the  subjects  of  the  fictitious  sovereign  of  the  Mosquito  Indians,  they 
subsequently  repudiated  the  control  of  any  power  whatever,  assumed 
to  adopt  a  distinct  political  organization,  and  declared  themselves  an 
independent  sovereign  state.  If,  at  some  time  a  faint  hoi)e  was  enter- 
tained that  they  might  become  a  stable  and  respectable  community, 
that  hope  soon  vanished.  They  proceeded  to  assert  unfounded  claims 
to  civil  jurisdiction  over  Punta  Arenas,  a  position  on  the  opposite  side 
of  the  river  San  Juan,  which  was  in  possession,  under  a  title  wholly  in- 
dependent of  them,  of  citizens  of  the  United  States  interestedin  the  Nic- 
aragua Transit  Company,  and  which  was  indispensably  necessary  to 
the  prosperous  operation  of  that  route  across  the  Isthmus.  The  com- 
pany resisted  their  groundless  claims ;  whereupon  they  proceeded  to 
destroy'  some  of  its  buildings  and  attempted  violently  to  dispossess  it. 

"At  a  later  period  they  organized  a  strong  force  for  the  purpose  of 
demolishing  the  establishment  at  Punta  Arenas,  but  this  mischievous 
design  was  defeated  by  the  interposition  of  one  of  our  ships  of  war,  at 
that  time  in  the  harbor  of  San  Juan.  Subsequently  to  this,  in  May  last, 
a  body  of  men  from  Greytown  crossed  over  to  Punta  Arenas,  arrogat- 
ing authority  to  arrest,  on  the  charge  of  murder,  a  captain  of  one  of  the 
steamboats  of  the  transit  company.  Being  well  aware  that  the  claim  to 
exercise  jurisdiction  there  would  be  resisted  then,  as  it  had  been  on  i)re- 
vious  occasions,  they  went  prepared  to  assert  it  by  force  of  arms.  Our 
minister  to  Central  America  happened  to  be  i)resent  on  that  occasion. 
Relieving  that  the  captain  of  the  steamboat  was  innocent,  for  he  wit- 
nessed the  transaction  on  which  the  charge  was  founded,  and  believing 
also  tliat  the  intruding  party,  having  no  jurisdicf ion  over  the  place 

589 


§  224rt.]  CLAIMS.  [CIIAP.  IX. 

where  tlit\v  i)roposed  to  make  the  arrest,  would  eueoiniter  desperate  re- 
sistauee  if  they  i^ersisted  in  their  i)iir[)ose,  he  interposed  ellectually  to 
prevent  violence  and  bloodshed.  The  American  minister  afterwards 
visited  Greytown,  and  whilst  he  was  there  a  mob,  iiiclndiiijj:  eertain  of 
the  so-called  public  functionaries  of  the  place,  surrounded  the  house  in 
which  he  was,  avowing  that  they  had  come  to  arrest  him,  by  order  of 
some  person  exercising;  the  chief  authority.  ^Vhile  parleying?  with  them 
he  was  wouuded  by  a  missile  from  the  crowd.  A  boat  dispatched  from 
the  American  steamer  Northern  Light  to  release  him  from  the  perilous 
situation  in  which  he  was  understood  to  be,  was  fired  into  by  the  towm 
guard  and  compelled  to  return.  These  incidents,  together  with  the 
known  character  of  the  population  of  Greytown,  and  their  excited  state, 
induced  just  apprehensions  that  the  lives  and  property  of  our  citizens  at 
Punta  Arenas  would  be  in  imminent  danger  after  the  departure  of  the 
steamer,  with  her  passengers,  for  Kew  York,  unless  a  guard  was  left  for 
their  protection.  For  this  purpose,  and  in  order  to  insure  the  safety  of 
passengers  and  property  i)assing  over  the  route,  a  temporary  force  was 
organized,  at  considerable  expense  to  the  United  States,  for  which  pro- 
vision was  made  at  the  last  session  of  Congress. 

"  This  pretended  community,  a  heterogeneous  assemblage  gathered 
from  various  countries,  and  composed,  for  the  most  part,  of  blacks 
and  persons  of  mixed  blood,  had  previously  given  other  indications  of 
mischievous  and  dangerous  propensities.  Early  in  the  same  month 
property  was  clandestinely  abstracted  from  the  depot  of  the  transit 
company  and  taken  to  Greytown.  The  plunderers  obtained  shelter 
there  and  their  pursuers  were  driven  back  by  its  people,  who  not  only 
protected  the  wrong-doers  and  shared  the  plunder,  but  treated  with 
rudeness  and  violence  those  who  sought  to  recover  their  property. 

"  Such,  in  substance,  are  the  facts  submitted  to  my  consideration 
and  proved  by  trustworthy  evidence.  I  could  not  doubt  that  the  case 
demanded  the  interposition  of  this  Government.  Justice  required  that 
reparation  should  be  made  for  so  many  and  such  gross  wrongs,  and 
that  a  course  of  insolence  and  plunder  tending  directly  to  the  inse- 
curity of  the  lives  of  numerous  travelers  and  of  the  rich  treasure  be- 
longing to  our  citizens  passing  over  this  transit  way,  should  be  per- 
emptorily arrested.  Whatever  it  might  be  in  other  respects,  the  com- 
munity in  question,  in  power  to  do  mischief,  "was  not  despicable.  Jt  was 
well  provided  witli  ordnance,  small-arms,  and  ammunition,  and  might 
easily  seize  on  the  unarmed  boats,  freighted  with  millions  of  property, 
which  passed  almost  daily  within  its  reach.  It  did  not  profess  to  belong 
to  any  regular  government,  and  had,  in  fact,  no  recognized  dependence 
on,  or  connection  with,  any  one  to  which  the  United  States  or  their  in- 
jured citizens  might  npi)ly  for  redress,  or  which  could  be  held  responsible 
in  any  way  for  the  outrages  committed.  Not  standing  before  the  world 
in  the  attitude  of  an  organized  political  society,  being  neither  competent 
to  exercise  the  rights  nor  to  discharge  the  obligations  of  a  government, 
590 


CHAP.  IX.J  CLAIMS    BASED    OX   WAR.  [§  224a. 

it  was,  iu  fact,  a  maraudiog  establislimeut,  too  daogerous  to  be  disre- 
garded and  too  guilty  to  pass  uni^imished,  aud  yet  iueapable  of  being 
treated  iu  any  other  way  than  as  a  piratical  resort  of  outlaws,  or  a 
camp  of  savages  depredating  on  emigrant  trains  or  caravans  and  the 
frontier  settlements  of  civilized  states. 

"  Seasonable  notice  was  given  to  the  iieople  of  Greytown  that  this 
Government  required  them  to  repair  the  injuries  they  had  done  to  our 
citizens,  and  to  make  suitable  apology  for  their  insult  of  our  minister, 
aud  that  a  ship  of  war  would  be  dispatched  thither  to  enforce  compli- 
ance with  these  demands.  But  the  notice  passed  unheeded.  There- 
upon a  commander  of  the  Navy,  in  charge  of  the  sloop  of  war  Cyane, 
was  ordered  to  repeat  the  demands,  and  to  insist  upon  a  compliance 
therewith.  Finding  that  neither  the  populace,  nor  those  assuming  to 
have  authority  over  them,  manifested  any  disposition  to  make  the  re- 
quired reparation,  or  even  to  offer  excuse  for  their  conduct,  he  warned 
them,  by  a  public  proclamation,  that  if  they  did  not  give  satisfaction 
within  a  time  specified,  he  would  bombard  the  town.  By  this  procedure 
he  afforded  them  opportunity  to  provide  for  their  personal  safety.  To 
those  also  who  desired  to  avoid  loss  of  property,  in  the  punishment  about 
to  be  inflicted  on  the  offending  town,  he  furnished  the  means  of  remov- 
ing their  effects,  by  the  boats  of  his  own  ship,  and  of  a  steamer  which 
he  procured  and  tendered  to  them  for  that  purpose.  At  length,  per- 
ceiving no  disposition  on  the  part  of  the  town  to  comply  with  his  req- 
uisitions, he  appealed  to  the  commander  of  Her  Britannic  Majesty's 
schooner  Bermuda,  who  was  seen  to  have  intercourse,  and  apparently 
much  influence  with  the  leaders  among  them,  to  interpose,  and  persuade 
them  to  take  some  course  calculated  to  save  the  necessity  of  resorting 
to  the  extreme  measure  indicated  in  his  proclamation  ;  but  that  ofiScer, 
instead  of  acceding  to  the  request,  did  nothing  more  than  to  protest 
against  the  contemplated  bombardment.  No  steps  of  any  sort  were 
taken,  by  the  people,  to  give  the  satisfaction  required.  No  individuals, 
if  any  there  were,  who  regarded  themselves  as  not  responsible  for  the 
misconduct  of  the  community,  adopted  any  means  to  separate  them- 
selves from  the  fate  of  the  guilty.  The  several  charges,  on  which  the 
demands  for  redress  were  founded,  had  been  publicly  known  to  all  for 
some  time,  and  were  again  announced  to  them.  They  did  not  deny  any 
of  these  charges;  they  offered  no  explanation,  nothing  in  extenuation 
of  their  conduct;  but  contumaciously  refused  to  hold  any  intercourse 
with  the  commander  of  the  Cyane.  By  their  obstinate  silence  they 
seemed  rather  desirous  to  ])rovoke  chastisement  than  to  escai)e  it. 
There  is  ample  reason  to  believe  that  this  conduct  of  wanton  defiance, 
on  tlwiir  part,  is  imputable  chifily  to  the  delusive  idea  that  the  Ameri- 
can Government  would  be;  deterred  from  i)nnishing  them  through  fear 
of  displeasing  a  formidable  foreign  power,  which,  they  ])resumed  to 
think,  looked  with  eomplaeciicy  njion  their  aggressive  and  insulting 
•  icixd  tiiieiit  fi)\\  ;ii(!,s  the  I  "iiitcd  St;ilfs.     The  Cyane  at  length  liird  ii)ioii 

501 


§  224a.]  CLAIMS.  [chap.  ix. 

the  towu.  Before  much  iujury  Lad  been  doue  the  fire  was  twice  sus- 
pended, in  order  to  afford  opportunity  for  an  arrangement;  but  this 
was  declined.  Most  of  tbe  buihliugs  of  tbe  phice,  of  little  value  gen- 
erally, v\ere,  in  tbe  sequel,  destroyed;  but,  owing  to  tbe  considerate 
precautions  taken  by  our  naval  commander,  there  was  no  destruction 
of  life. 

"  When  the  Cyaue  was  ordered  to  Central  America,  it  was  confidently 
boped  and  expected  that  no  occasion  would  arise  for  'a resort  to  violence 
and  destruction  of  property  and  loss  of  life.'  Instructions  to  tbat 
effect  were  given  to  her  commander.  And  no  extreme  act  would 
have  been  requisite  had  not  tbe  people  themselves,  by  their  extraor- 
dinary conduct  in  the  aflair,  frustrated  all  tbe  i^ossible  mild  measures 
for  obtaining  satisfaction.  A  witbdrawal  from  the  place,  tbe  object  of 
bis  visit  entirely  defeated,  would,  under  the  circumstances  in  wbich  tbe 
commander  of  the  Cyane  found  himself,  have  been  absolute  abandon- 
ment of  all  claim  of  our  citizens  for  indemnification,  and  submissive 
acquiescence  in  national  indignity.  It  would  bave  encouraged  in  these 
lawless  men  a  spirit  of  insolence  and  rapine  most  dangerous  to  tbe 
lives  and  property  of  our  citizens  at  Punta  Arenas,  and  probably  em- 
boldened them  to  grasp  at  tbe  treasures  and  valuable  merchandise  con- 
tinually passing  over  tbe  Nicaragua  route.  It  certainly  would  have 
been  most  satisfactory  to  me  if  the  objects  of  tbe  Cyane's  mission  could 
bave  been  consummated  without  any  act  of  public  force;  but  the  ar- 
rogant contumacy  of  tbe  ofienders  rendered  it  impossible  to  avoid  the 
alternative,  either  to  break  up  their  establishment,  or  to  leave  them 
impressed  with  tbe  idea  that  they  might  persevere  with  impunity  in 
a  career  of  insolence  and  plunder. 

'•This  transaction  has  been  tbe  subject  of  comjdaint  on  the  part  of 
some  foreign  powers,  and  has  been  characterized  with  more  of  harsh- 
ness than  of  justice.  If  comparisons  were  to  be  ijistitutcd,  it  would 
not  be  diCBcult  to  present  repeated  instances  in  the  history  of  states, 
standing  in  tbe  very  front  of  modern  civilization,  where  communities, 
far  less  offending  and  more  defenseless  than  Greytown,  bave  been 
chastised  with  much  greater  severity,  and  where  not  cities  only  have 
been  laid  in  ruins,  but  human  life  has  been  recklessly  sacrificed,  and 
tbe  blood  of  tbe  innocent  made  profusely  to  mingle  with  tbat  of  the 
guilty." 

rresident  Pierce,  Second  Auuual  Message,  1854. 

The  people  of  Greytown,  in.  1854,  formed  "a  marauding  establish- 
ment too  dangerous  to  be  disregarded,  and  too  guilty  to  pass  unpun- 
ished. If  the  subjects  or  citizens  of  foreign  states  chose  to  become 
dwellers  among  such  an  assemblage,  and  submit  their  property  to  such 
a  custody,  they  can  have  no  just  cause  to  complain  nor  good  grounds 
for  the  redress  of  injuries  resulting  from  the  punishment  inflicted  upon 
that  offending  community." 

Mr.  Marcy,  Sec.  of  State,  to  Jtr.  Sartiges,  Feb.  26, 1857.     MSS.  Notes,  France. 
502 


CHAP.  IX.]  CLAIMS  BASED  ON  WAR.  [§  224a. 

This  bombardmeut  is  sustainable  by  interuatioual  law. 
Tbid. 

To  same  effect,  see  Mr.  Marcy,  Sec.  of  State,  to  Mr.  Molina,  Oct.  20, 1854.     MSS. 
Notes,  Cent.  Am.     See  also  3  Lawrence,  com.  sur.  droit  int.,  130. 

"  It  is  presumed  that  tliere  will  be  no  attempt  to  maintain  that  indi- 
^  idual  members  of  an  organized  political  body,  in  a  case  like  this  [the 
bombardment  of  Greytowu],  can  be  allowed  to  separate  themselves  from 
the  collective  community,  and  claim  rights  and  immunities  which  do 
not  belong  to  the  whole  association.  It  would  be  preposterons  to  hold 
that  the  associated  body  deserved  the  punishment  inflicted  upon  it,  and 
the  individuals  composing  itare  entitled  to  indemnity  for  their  sulferings. 

"  If  there  were  persons  in  Greytown  when  it  was  bombarded  who  did 
not  belong  to  the  political  organization  there  established,  and  who  suf- 
fered in  consequence  of  that  bombardment,  they  can  only  resort  for 
indemnity,  if  entitled  to  it,  to  that  community.  It  was  to  that  commu- 
nity they  committed  their  persons  and  property,  and  by  receiving  them 
within  its  jurisdiction,  it  assumed  the  obligation  of  protecting  them. 
Nothing  can  be  more  clearly-  established  than  the  principle  that  a  for- 
eigner domiciled  in  a  country  can  only  look  to  that  country  for  the  pro- 
tection he  is  entitled  to  receive  while  within  its  territory ;  and  that  if 
he  sustains  injury  for  the  want  of  that  protection,  the  country  of  his 
domicile  must  indemnify  him." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Sartiges,  Feb.  26,  1857.     MSS.  Notes,  France. 

Mr.  Seward,  in  a  letter  to  ]Mr.  Sumner,  dated  February  26,  18G8,  sus- 
tains the  non-liability  of  the  United  States  for  losses  by  a  French  resi- 
dent in  the  bombardment  of  Greytown.  He  further  states  that  the 
claimant  is  bound  by  the  acquiescence  of  the  French  Government  "in 
the  refusal  of  the  United  States  to  grant  any  indemnity  for  the  losses  of 
French  subjects  on  that  occasion."  It  is  added  that  in  1857  Lord  Pal- 
merston  applied  the  decision  in  the  case  of  Greytown  as  i^recedeut  for 
refusing  compensation  to  British  merchants  whose  property  in  a  Eus- 
sian  port  had  been  destroyed  by  a  British  squadron  during  the  Crimean 
war;"  citing  Lawrence's  AVheaton,  173;  Dana's  Whcaton,  145;  and  that 
the  same  position  under  similar  circumstances  was  taken  by  Austria 
and  Iiu.s.sia,  citing  2  Vattel  (Guillamin's  ed.),  18G3. 

"The  undersigned  cannot  acknowledge  any  substantial  difference 
between  the  claim  of  Mr.  Be.scher  and  those  of  the  French  subjects  ad- 
verted to  by  Mr.  Marcy  in  his  note  to  M.  de  Sartiges  of  the  2(>th  of  Feb- 
ruary, 1857.  A  minister  of  the  United  States  on  his  return  home  had 
been  assaulted  and  insulted,  and  property  of  citizens  of  the  United 
States  had  been  robbed  at  Greytown.  The  Cyane  was  sent  thither  to 
deiiumd  redress  for  these  injuries.  This  redress  not  having  been  given, 
the  town  was  destroyed,  partly  by  bombardment,  and  the  destruction 
was  coini)leted  by  a  force  of  nuirine.s  landed  for  that  puri)()se. 

"How  much  soever  this  Government  may  regret  that  unollrnding 
neutrals  should  have  suftered  under  these  circumstances  they  must  look 

S.  Mis.  lOL'— VOL.  II 38  593 


§  224a.]  CLAIMS.  [chap.  ix. 

for  redress,  if  anj'where,  to  tlie  community  where  tbey  chose  to  take  up 
their  abode,  and  whose  conduct  occasioned  the  measure  which  led  to 
their  losses." 

Mr.  Fish,  Sec.  of  State,  to  Barou  Gerolt,  Apr.  1."),  1870      MSS.  Notes,  Prussia. 

"The  bombardment  referred  to  (of  Grey  town)  is  understood  to  have 
been  regarded  as  necessary  and  justifiable  under  the  circumstances, 
and  to  have,  in  the  main,  been  occasioned  by  insults  of  the  inhabitants 
of  Greytown  at  that  time  to  the  Hon.  Solon  Borhuid,  who  was  on 
his  way  through  there  when  about  to  return  home.  Property  of  sev- 
eral citizens  or  subjects  of  foreign  countries  was  destroyed  at  the  same 
time,  but  this  Department  has  uniformly  declined  to  entertain  any  claim 
to  indemnification  therefor." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Lnttrell,  Apr.  28,  1876.    MSS.  Dom.  Lot. 
The  corrospoudcnce  with  regard  to  the  attack  on  the  United  States  steamer 
Prometheus,  in  Xovember,  1851,  in  the  harbor  of  San  Juan  (Greytown),  is 
given  in  House  Ex. Doc.  61,  32d  Cong.,  1st  sess. ;  Senate  Ex. Doc.  30,  32d 
Cong.,  1st  sess.     See  Senate  Ex.  Doc.  6,  same  session,  and  infra,  §  3ir)(?. 
President  Pierce's  message  of  December  19,  1853,  with  accompanying  papers, 
Senate  Ex.  Doc.  8,  33d  Cong.,  ist  sess.     The  correspondence  as  to  the  bom 
bardment  of  San  Juan  CGreytown)  is  attached  to  message  of  President 
Pierce  of  July  31,  1854  ;  Ex.  Doc.  85,  33d  Cong.,  1st  sess. 
The  reports  of  the  Secretaries  of  State  and  of  the  Navy,  with  regard  to  the 

bombardment,  will  be  found  in  House  Ex.  Doc.  126,  33d  Cong.,  Ist  sess. 
President  Buchanan's  message  of  December  23, 1857,  containing  correspondence 
as  to  loss  sustained  by  this  bombardment,  is  in  Senate  Ex.  Doc.  9,  35th 
Cong.,  Ist  sess.     For  report  in  Perriu's  case  see  Senate  Rep.  464, 44th  Cong., 
Ist  sess. 
In  the  Brit,  and  For.  St.  Pap.  for  1851-'52,  vol.  41,  are  the  following : 

Message  of  President  Fillmore,  December  15, 1851,  as  to  the  attack  on  the  Pro- 
metheus. 
Instructions  of  Mr.  Graham,  Secretary  of  the  Navy,  to  Commodore  Parker  (De- 
cember, 1851),  saying  that  "  whatever  may  have  been  the  merits  of  the 
question  between  the  United  States  and  the  authorities  of  Nicaragua,  the 
United  States  acknowledge  no  rights  in  a  vessel  of  the  Government  of  Great 
Britain  to  exercise  any  police  supervision  over  American  merchant  vessels 
in  Nicaragua,  or  elsewhere  out  of  British  dominions,"  and  ordering  the 
United  States  war  steamer  Saranac  "to  proceed  to  San  Juan  de  Nicaragua 
for  the  purpose  of  affording  protection  to  American  commerce  against  any 
such  interference  for  the  future." 
Letter  signed  by  American  citizens  at  Greytown,    in    respect    to  the  Pro« 

metheus.    Infra,  $  315d. 
Letters  of  British  naval  ofiScers  as  to  attack  on  the  Prometheus. 
Lord  Granville  to  Mr.  Lawrence,  January  10,  1852,  saying  that  Her  Majesty's 
Government  "entirely  disavows  the  act  of  violence  committed  by  the  com- 
mander of  the  Express,"  and  "offering  an  ample  apology  for  that  which 
they  consider  an  infraction  of  treaty  engagements,"  adding  that  "it  would 
be  unworthy  the  Government  of  a  great  nation  to  hesitate  about  making 
due  reparation,  when  the  acts  of  their  subordinate  authorities  had  been  such 
as  not  to  admit  of  justification."     See  infra,  §  315rf. 
Correspondence  of  North  American  Atlantic  and  Paciic  Ship  Canal  as  to  port 
dues  at  Greytown. 

694 


CHAP.  IX.]  CLAIMS    BASED    ON    WAR.  [§  224a. 

Lord  Grauville  to  Mr.  Crampton,  January  23,  1852  (two  letters),  as  to  settle- 
ment of  Mosquito  question. 
Lord  Granville  to  Mr.  Crampton,  February  20,  1852,  as  to  Greytown. 
Mr.  Crampton  to  Lord  Grauville,  March  8,  1852 ;  Maxell  14,  1852 ;  Mareh  22, 

1852,   as    to    conferences   with  Mr.    Webster,   relative   to   Greytown   and 

Nicaragua. 
Proceedings  of  meeting  of  citizens  of  Greytown,  February  28,  1852,  asking 

Nicaragua  for  a  charter. 
Mr.  Crampton  in  reference  thereto,  March  18,  1852. 
Mr.  Webster,  Secretary  of  State,  to  Mr.  Graham,  Secretary  of  Navy,  March  18, 

1852,  commenting  on  same  proceedings. 
Mr.  Crampton  to  Lord  Malmesbury,  March  28,  A^iril  5, 1852,  as  to  settlement  of 

difficulties. 
Draft  of  agreement  between  the  United  States,  Great  Britain,  and  Nicaragua  as 

to  Greytown  and  Mosquito  country. 
Further  correspondence  relative  thereto. 
Proposed  settlement  of  April  30,  1852. 
Further  correspondence  relative  thereto. 
Constitution  of  the  city  of  Greytown  of  April,  1852. 

Lord  Malmesbury  to  Mr.  Crampton,  July  16, 1852,  as  to  position  of  Greytown. 
Mr.  Crampton  to  Lord  Malmesbury,  July  4,  1852,  as  to  conferences  with  Mr. 

Webster. 
Letters  of  Mr.  Walsh  and  Mr.  Wyke  relative  to  Costa  Kica  and  Nicaragua. 
Further  correspondence  as  to  settlement. 
Eefusal  of  Nicaragua  to  accept  the  terms  of  settlement  proposed  by  Great 

Britain  and  the  United  States,  July  19,  1852. 
Modifications  proi)osed  by  Nicaragua,  July  29,  1852 ;  correspondence  relative 

thereto. 

Additional  correspondence  respecting  the  bombardment  and  destruction  of  San 
Juan  del  Norte,  or  Greytown,  by  the  U.  S.  ship  Cyane,  May-July,  1854, 
will  be  found  in  the  Brit,  and  For.  St.  Pap.  for  1855-'56,  vol.  46,  859^. 

Jn  Mr.  Marcy's  instructioDS  of  Juno  0,  1854,  to  the  TJDited  States 
commercial  agent  at  Greytown  (San  Juan)  it  is  stated  that  Commander 
Holllns  has  been  ordered  to  proceed  thither  in  a  national  ship.  The 
instructions  include  the  following: 

"It  is  said  that  the  pretended  political  and  civil  authority  at  that 
jjlace  is  dissolved.  Should  this  prove  to  be  true,  there  will  be  no  organ- 
ized body  upon  whom  a  demand  for  redress  can  be  made,  or  from  whom 
a  proper  indemnity  for  injuries  or  insults  can  be  received.  But  the  in- 
dividuals who  have  participated  in  the  infliction  of  the  wrongs  cannot 
escape  from  the  responsibilities  resulting  from  the  conduct  of  the  late 
political  organization  at  that  place.  *  *  *  The  injuries  for  which 
redress  is  leqniied  are  stated  to  be  two-fold:  (1)  the  spoliation  of  the 
transit  com[)any ;  (2)  an  insult  to  Mr.  Borland,  United  States  minister 
to  Central  America. 

"If  done  by  order  of  the  authorities  of  the  place  they  must  answer 
for  it  in  their  assumed  political  character.  *  *  *  If  the  outrage 
was  committed  by  lawless  individuals,  without  the  authority  or  con- 
nivance of  the  town,  then  it  is  clearly  the  duty  of  those  who  exeicise 
the  civil  jjower  at  San  Juan  to  inllict  upon  them  exemi)lary  punish- 
ment. The  neglect  to  bring  tiicin  to  justice  is  an  implied  sanction  of 
the  acts  of  the  transgressors." 

695 


§  224a.]  CLAIMS.  [ciiAP.  ix. 

On  July  1L\  1Sj4,  the  United  States  commercial  agent  at  San  Juan 
(jMr.  Fabens)  a(h  iseil  Connnaiider  Ilollins,  of  the  Cyane,  as  follows: 
''In  aecordanee  with  instructions  from  the  Department  of  State,  bearing 
date  June  o,  1854,  I  notified  the  i)eople  of  San  Juan  del  Norte  that  the 
United  States  Government  would  (k'maud  of  them  i)ayment  for  the 
projierty  feloniously  taken  by  and  Mith  their  countenance  and  consent 
iiom  the  Accessory  Transit  Company.  I  further  lenewed  the  demand 
already  made  by  the  said  comi)any  for  outrages  committed  upon  their 
l)roi>erty  in  i\Iarch,  1853.  To  this  notice  and  demand  no  ollicial  rei)ly 
lias  been  given.  As  regards  the  insult  ollered  to  Mr.  liorland,  our  min- 
ister to  Central  Anu'rica,  I  have  to  inform  you  that,  so  far  from  any 
apology  having  been  offered  by  the  town  or  its  authorities,  or  any  stei)s 
having  been  taken  to  bring  the  perpetrators  thereof  to  Justice,  the  chief 
actors  and  instigators  are  now  in  undisputed  jjossession  of  the  town,  its 
arms  and  ammunitions,  and  they,  the  people  of  the  town,  are  thus  coun- 
tenancing and  approving  the  indignity  to  the  present  moment." 

On  July  12,  1S54,  all  attempts  to  secure  redress  or  apology  having 
failetl,  Commander  Collins  announced  that  at  nine  o'clock  of  the  morning 
of  July  13,  the  town  would  be  bombarded. 

On  July  12,  1S54,  the  commander  of  the  Biitish  schooner  Bermuda 
protested  against  this  act. 

On  July  15,  1854,  ^Ir.  Fabens,  the  United  States  commercial  agent  at 
San  Juan,rei)orted  the  above  facts  to  the  Secretary  of  State,  and  added 
that  the  bombardment  of  the  town  was  opened  according  to  notice. 

On  July  1(!,  1854,  Commander  Ilollins  forwarded  a  report  of  the  bom- 
bardment, which  ended  in  an  "almost  total  destruction  of  the  buildings, 
though  no  lives  were  lost." 

Tlie  prior  covrespoudcucc  as  to  the  origiu  of  the  claim  aud  the  couduct  of  tlie 
authorities  of  San  Juan  Avill  be  foiind  in  Brit,  and  For.  St.  Pap.  for  1865-'G7, 
vol.  47,  1004  iT. 

When  the  Greytown  bombardment  was  under  discussion  in  the  House 
of  Commons  on  June  19,  1857,  Lord  Palmerston,  then  first  minister, 
said:  "It  is  undoubtedly  a  principle  of  international  law  that  when  one 
Government  deems  it  right  to  exercise  acts  of  hostility  against  the 
territory  of  another  power,  the  subjects  of  third  powers  who  ujay  happen 
to  be  resident  in  the  place  attacked  have  no  claim  whatever  upon  the 
Government  which,  in  the  exercise  of  its  constitutional  rights,  commits 
these  acts  of  hostility.  For  instance,  it  was  deemed  necessary  for  us 
10  destroy  the  town  of  Sebastopol.  There  may  have  been  in  that  town 
Germans,  Italians,  Portuguese,  and  Americans.  But  none  of  these 
parties  had  any  ground  upon  which  to  claim  from  the  British  and 
French  Governments  compensation  for  losses  sustained  by  the  result  of 
these  hostilities.  Those  who  go  and  settle  in  a  foreign  country  must 
abide  the  chances  which  may  befall  that  country,  and  if  they  have  any 
claim,  it  must  be  upon  the  Government  of  the  country  in  which  tliey 
are  ;  but  they  can  have  no  claim  whatever  upon  the  Government  which 
thinks  right  to  commit  acts  of  hostility  against  that  state.  Therefore, 
we  were  advised,  and  1  think  rightly,  that  British  subjects  at  Grey- 
town  had  no  ground  on  which  thej'  could  call  ui)on  the  Govern- 
ment of  this  country  to  demand  from  the  Government  of  the  United 
States  compensation  for  the  injuries  which  they  suft"ered  from  the  attack 
ni)on  that  town.  We  may  think  that  the  attack  was  not  ju.stified  by 
the  cause  which  was  assigned.     But  as  an  independent  state  we  have 

59G 


CHAP.  IX.]  CLAIMS    BASED    ON    WAU.  [§  224. 

no  rigbt  to  judge  the  motives  wliicb  actuated  auotber  state  iu  viudi- 
catiiig- wroDgs  which  they  supposed  thej"  had  sustained,  and  there  was 
nothing  iu  the  relations  between  Great  Britain  and  Greytowu  which 
gave  us  a  right  exceptional  to  the  general  rule  of  international  law. 
Government  is  there  (iu  Greytowu),  administered  by  a  self-elected, 
self-constituted  mnnicipality  of  Americans,  English,  French,  Spaniards, 
and  Germans.  They  are  acting  upon  their  own  responsibility,  and  they 
must,  and  not  England,  be  responsible  for  everything  they  do.  I  be- 
lieve the  real  state  of  the  case  was  that  there  was  a  dispute  between 
two  rival  American  transit  companies,  the  one  patronized  by  the  self- 
constituted  government  of  Greytowu,  the  other  by  the  Government  of 
the  United  States,  and  that  out  of  the  rivalship  and  quarrels  of  these 
two  companies  arose  the  transaction  to  which  the  noble  lord  bas  ad- 
verted. There  were  undoubtedly  communications  which  passed  be- 
tween the  British  and  American  Governments,  with  a  view  to  ascertain 
what  the  intentions  of  the  American  Governmeut  were;  but  we  found 
that  they  rested  upon  the  rule  of  international  law  to  which  I  have  re- 
ferred, and  the  right  which  the  law  of  nations  gave  them  to  take 
measures  which  they,  in  their  own  judgment,  deemed  necessary.  The 
American  Government  determined  not  to  give  compensation  to  anj^  par- 
ties. *  *  *  ner  Majesty's  Government,  therefore,  acting  under  the 
advice  of  those  who  are  most  competent  to  give  an  opinion  upon  the  sub- 
ject, aiul  deeming  the  advice  in  accordance  with  international  practice, 
have  foregone  demanding  any  compensation  of  the  United  States  for  sub- 
jects of  Great  Britain  injured  by  the  bombardment  of  Greytowu." 

"  On  a  subsequent  occasion  Mr.  Adams  inquired  '  whether  it  was  the 
intention  of  Her  Majesty's  Government  to  introduce  any  measure  en- 
abling them  to  grant  compensation  to  British  merchants  whose  prop- 
erty at  Uleaborg,  in  the  Gulf  of  Bothnia,  had  been  destroyed  on  the 
2d  of  June,  1854,  by  the  boats  of  a  squadron  under  the  command  of 
Admiral  Plum  ridge.' 

"Lord  Palmerston  said  'that  the  proceedings  iu  this  matter  nuist  be 
regulated  by  the  principle  which  he  had  declared  to  be  an  international 
principle  when  a  question  arose  as  to  the  losses  sustained  by  British 
subjects  at  Greytowu.  He  then  stated  the  principle  of  international 
law  to  be  that  jiersons  who  were  domiciled  in  a  foreign  country  must 
abide  by  the  fate  of  that  country  iu  peace  and  war,  and  that,  therefore, 
no  demand  could  properly  be  nuide  ui)on  the  American  Government  for 
losses  sustained  by  British  subjects  iu  Greytowu  in  consequence  of  hos- 
tilities between  that  place  and  the  United  States.  The  same  ])rincip]e 
a])plied  to  the  case  to  which  the  honorabh^  gentlemen  now'  referred. 
There  were  certain  British  subjects,  and  ])r()bably  the  subjects  of  other 
states,  who  were  douiiciled  or  had  ])r()i)erty  iu  the  llussian  territory. 
Those  persons  must  take  the  chance  of  the  protec;tion  of  the  Bussian 
Empire,  and  if  by  any  circumstances  tlu;  ])lace  where  their  pr()i)erty 
was  situated  became  the  scene  of  hostile  operations,  no  claim  could 
jtossibly  be  set  up  by  those  i>ersons,  whatever  country  they  might  be- 
long to,  against  the  Government  whose  ibrces  carried  on  the  hostilities 
by  which  they  had  been  nmde  to  suller.'  (Hansard's  I'arl.  Debates, 
.id  series,  vol.  cxlvi,  p.  lOi.3,  House  of  Commons,  .luly  17,  1857.)" 

Lawreuce'H  Wlicatoii  (ctl.  180:5),  175. 

597 


§  225.]  CLAIxMS.  [chap.  IX. 

(4)  But  rklligerknt  is  liable  i-oii  injuuies  inflicted  in  violation  of  •.;ules 

OF  civilized  warfare. 

§  225. 

As  to  what  constitutes  such  violation,  see  infm,  v\^  317^. 

"The  general  principle  of  public  law,  sauctionc'i  by  tlic  express  as- 
sent of  the  principal  nations  of  Europe,  and  wLiicli  this  Government, 
lias  a*^serfe(l  on  many  occasions,  from  the  boml)anlment  of  Greytown 
tlown  to  its  latest  oi^erations  in  tlic  suppression  of  the  recent  rebellion, 
is  that  the  citizens  of  foreign  states  who  reside  within  the  arena  of 
war,  have  no  right  to  demand  com])ensation  from  either  of  the  belliger- 
ents for  the  losses  or  injuries  they  sustain. 

"This  rule  has  doubtless  some  limitation.  It  is  not  to  be  construed  as 
proclaiming  immunity  to  a  belligerent  for  every  outrage  which  may  be 
perpetrated  by  those  in  his  service,  simply  because  they  occurred  dur- 
ing the  time  and  upon  the  theater  in  which  hostilities  were  prosecuted. 
The  injury,  it  may  be  conceded,  must  result  from  such  military  or  naval 
measures  as  by  the  code  of  civilized  warfare  and  the  modern  practice 
of  nations  are  recognized  as  legitimate.  There  appears  to  be  nothing 
in  the  circumstances  of  the  bombardment  of  Valparaiso,  so  far  as  is 
known  to  us,  which  should  take  it  out  of  this  category.  It  ^yas  an  act 
of  what  may  be  deemed  extreme  severity.  With  the  question  how  far 
it  was  justifiable,  as  between  the  belligerents,  we  can  have  nothing  to 
do.  The  most  that  a  neutral  j)ower  can  ask  in  behalf  of  its  citizens  or 
other  non-combatants  vrho  may  be  exposed  to  injury  from  an  operation 
which,  like  the  bombardment  of  a  town,  when  once  begun,  must  neces- 
sarily be  indiscriminating  in  its  efl'eets,  is  to  require  that  a  reasonable 
time  should  be  granted  to  them  to  withdraw  their  persons  and  property 
from  the  peril.  The  granting  of  even  this  can  hardly  be  a  matter  of 
obligation  if  it  would  defeat  or  endanger  the  main  object  of  the  attack. 

"  In  the  case  in  question,  as  it  seems  to  me,  from  such  information  as 
we  have,  not  onl^-  was  reasonable  notice  given  by  the  Spanish  admiral 
to  foreign  residents  and  non-combatants  to  withdraw  their  persons  and 
property  from  exposure,  but  pains  appear  to  have  been  taken  to  con- 
fine the  fire  of  his  fleet  to  the  Government  buildings  and  public  property 
of  Chili. 

"I  am  induced  to  think,  therefore,  that  Americans  domiciled  in  Val- 
paraiso have  no  ground  for  invoking  the  intervention  of  the  Govern- 
ment to  require  of  either  Spain  or  Chili  indemnity  for  their  damages 
incurred  in  the  bombardment  of  Valjiaraiso." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Stanbery,  Aug.  24,  18G6.     MSS.  Dom.  Let. 
For  Mr.  Stanbery's  opinion  in  reply,  see  supra,  ^  224. 

Citizens  of  the  United  States  have  a  right  to  engage  in  the  military 
service  of  foreign  powers.  Christian  or  non-Christian,  and  in  such  cases, 
while  the  Government  of  the  United  States  will  not  take  cognizance  of 
598 


CHAP.  IX.]  CLAIMS    BASED    ON   WAR.  [§  225. 

their  death  iu  battle,  it  "  will  expect  that  no  unusual  or  inhuman  jDun- 
ishment  be  inflicted  upon  any  of  its  citizens  who  are  taken  prisoners, 
but  that  they  shall  be  treated  according  to  the  accepted  rules  of  civil- 
ized warlare." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Williains,  July  29,  1874.     MSS.  lust.,  CLina.     See 
as  to  enlistment  in  foreign  service,  infra,  $  392. 

''In  your  Xo.  3-4,  of  the  19th  of  September  last,  you  inform  this 
Department  that  the  court  of  arbitration  iu  Chili  has  lately  published 
three  rules  for  the  decision  of  claims  against  the  Government,  which  are 
as  follows : 

'•  (1)  Bombardment  is  permissible  as  long  as  there  is  resistance  of  a  rifle. 

"(2)  Acts  committed  by  soldiers  or  persons  connected  with  the  army  without  orders 
from  their  superiors  in  command  do  not  compromise  a  Government. 

"  (3)  Any  proofs  taken  without  notice  to  Government  aflfected  are  not  admissible 
as  evidence. 

"  The  first  rule  is  susceptible  of  various  interpretations,  according  to 
the  circumstances  to  which  it  is  sought  to  be  applied,  and  altogether 
too  vague  in  its  terms  to  admit  of  discussion. 

"As  to  the  second  rule,  the  position  of  this  Government  is,  that  while 
a  Government  is  responsible  for  the  misconduct  of  its  soldiers  when  in 
the  field,  or  when  acting  either  actually  or  constructively  under  its 
authority,  even  though  such  misconduct  had  been  forbidden  by  it,  it  is 
not  responsible  for  collateral  misconduct  of  individual  soldiers  dictated 
by  private  malice.  But  the  mere  fact  that  soldiers,  duly  enlisted  and 
uniformed  as  such,  commit  acts  '  without  orders  from  their  superiors  in 
command,'  does  not  relieve  their  Government  from  liability  for  such 
acts." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Buck,  Oct.  27,  188.0.     MSS.  Inst.,  Peru  ;  For. 
Rel.,  1885.     See  infra,  §$  347  #. 

The  following  passages  are  cited  with  approval  by  Mr.  Bavard,  Sec- 
retary of  State,  in  instructions  of  May  27,  188G,  to  Mr.  Uall  {MS8. 
Inst.j  Cent.  Am.)  : 

"  We  do  not  at  the  present  day  often  hear,  when  a  town  is  carried 
by  as.sault,  that  the  garrison  is  put  to  the  sword  in  cold  blood,  on  the 
plea  that  they  have  no  right  to  quarter.  Such  things  are  no  longer 
approved  or  countenanced  b^'  civilized  nations.  But  wo  sometimes 
hear  of  a  cai)tured  town  being  sacked,  and  the  houses  of  the  inliabitants 
being  jilundered  on  the  plea  that  it  was  impossible  for  the  general  to 
restrain  his  soldiery  in  tlie  confu.sion  and  excitement  of  storming  the 
place;  and  und(.'r  tliat  softer  name  of  j)lunder  it  has  sometimes  been 
attempted  to  veil  'all  crimes  which  man  in  his  worst  excesses  can 
coMjmit;  horrors  so  atrocious  that  their  very  atrocity  preserves  them 
from  our  full  execration,  because  it  makes  it  impossible  to  describe 
them.'  It  is  true  that  soldiers  sometimes  commit  excesses  which  their 
officers  cannot  i)revent,  but  in  gcncMal  a  commanding  ollicer  is  respon- 
sible for  \\n'.  acts  of  those  under  his  orders.  Unless  he  can  contr»)l  his 
soldiers,  he  is  not  fit  to  command  them.  The  most  atrocious  crimes  in 
war,   however,  are   usually  (toniniittcd   by  militia  and  volunteers  sud- 

599 


§  226.J  CLAIMS.  [chap.  IX. 

deiily  raised  from  tlio  ]iopulatioii  of  great  cities  and  sent  into  the  field 
before  tlie  general  has  time  or  oi>portnnity  to  reduce  them  to  order  or 
discipline.  In  such  cases  the  responsibility  of  their  crimes  rests  upon 
the  State  which  employs  them  rather  than  upon  the  general  who  is 
perhaps  unwillingly  obliged  to  use  them." 

Ilalleck's  International  Law  and  Laws  of  War  (San  Francisco,  1»G1,  ^  22,  p. 
442),  citing  Kent's  Comiueufaries,  Vattel's  Droit  dugcns,  ami  other  authori- 
ties.    See  ivfra,  ^  340. 

"  As  civilization  has  advanced  during  the  last  centuries,  so  has  like- 
wise steadily  advanced,  especially  in  war  on  land,  the  distinction  be- 
tween the  private  individual  belonging  to  a  hostile  country,  and  the 
hostile  country  itself  with  its  men  in  arms;"  and  that  "  the  ])rincii)le 
has  been  more  and  more  acknowledged  that  the  unarmed  citizen  is  to 
be  spared  in  person,  property,  and  honor  as  much  as  the  exigencies  of 
war  will  admit." 

Dr.  Francis  Lieber's  Instructions  for  the  Government  of  Armies  of  the  United 

States  in  tho  Field,  sec.  1,  par.  22. 
As  to  limitations  by  laws  of  war,  see  infra,  ^^  347  j^. 

V.   CLAIMS  BASED  ON  MOB  INJURIES. 

A  GOVEKNMEXT  IS  LIABLK  INTERNATIONALLY  ECU  SUCH  INJUiUES  WIIICN  IT  COULD 
HAVE  TREYENTED  THEM  ;  BUT  WHEN  THERE  IS  A  REMEDY  GIVEN  IN  THE  JUDICIAL 
TRIBUNALS,  THIS  MUST  BE  PURSUED. 

§   226. 

"  The  assembling  of  mobs  happens  iu  all  countries ;  popular  vio- 
lences occasionally  break  out  everywhere,  setting  law  at  defiance,  tramp- 
ling- on  the  rights  of  citizens  and  private  men,  and  sometimes  on  tho.se 
of  i^ublic  officers,  and  the  agents  of  foreign  Governments,  especially  en- 
titled to  protection.  In  these  cases  public  faith  and  national  honor  re- 
quire, not  only  that  such  outrages  should  be  disavowed,  but  also  that 
the  i^erpetrators  of  them  should  be  ininishcd  wherever  it  is  possible  to 
bring  them  to  justice ;  and,  further,  that  full  satisfaction  should  be 
made  iu  cases  in  which  a  duty  to  that  efi'ect  rests  with  the  Government, 
according  to  the  general  princii^les  of  law,  i^ublic  faith,  and  the  obliga- 
tion of  treaties.  Mr.  Calderon  thinks  that  the  euormity  of  this  act  of 
popular  violence  is  heightened  by  its  insult  to  the  flag  of  Spain.  The 
Government  of  the  United  States  would  earnestly  deprecate  any  indig- 
nity offered  ia  this  country  in  time  of  peace  to  the  flag  of  a  nation  so 
ancient,  so  respectable,  so  renowned  as  Spain. 

"  It  appears,  however,  that  iu  point  of  fact  no  flag  was  actually  fly- 
ing or  publicly  exhibited  when  the  outrage  took  place ;  but  this  can 
make  no  difference  in  regard  to  the  real  nature  of  the  offense  or  its 
enormity.  The  persons  composing  the  mob  knew  that  they  were  offer- 
ing insult  and  injury  to  an  officer  of  Her  Catholic  Majesty,  residing  in 
the  United  States  under  the  sanction  of  laws  aiul  treaties ;  and  there- 

GOO 


CHAP.  IX.]  CLAIMS    BASED    ON   MOB    INJURIES.  [§  226. 

fore  their  conduct  admits  of  no  justification.  M'evcitLeless,  Mr.  Calde- 
rou  and  bis  Govern nient  are  aware  that  recent  intelligence  bad  then 
been  received  from  Havana,  not  a  little  calculated  to  excite  popular 
feeling  in  a  great  city,  and  to  lead  to  popular  excesses.  If  this  be  no 
justification,  as  it  certainly  is  none,  it  may  still  be  taken  into  view,  and 
regarded  as  showing  that  the  outrage,  bowever  flagrant,  was  committed 
in  the  beat  of  blood,  and  not  in  pursuance  of  any  i>redetermined  plan  or 
puriiose  of  injury  or  insult.     *     *     * 

"  While  this  Government  has  manifested  a  willingness  and  determina- 
tion to  perform  every  duty  wbicb  one  friendly  nation  has  a  right  to  ex- 
pect from  another,  in  cases  of  this  kind,  it  supposes  that  the  rights  ol 
the  Spanish  consul,  a  public  officer  residing  here  under  the  i)rotectioL 
of  the  United  States  Government,  are  quite  different  from  those  of  tbo 
Spanisb  subjects  who  have  come  into  tbe  country  to  mingle  witb  our 
own  citizens,  and  here  to  pursue  their  private  business  and  objects. 
The  former  may  claim  special  indemnity,  the  latter  are  entitled  to  such 
protection  as  is  afforded  to  our  own  citizens.  "While,  therefore,  tbe 
losses  of  individuals,  private  Spanisb  subjects,  are  greatly  to  be  regret- 
ted, yet  it  is  understood  that  many  American  citizens  suffered  equal 
losses  from  tbe  same  cause.  And  these  private  individuals,  subjects  of 
Iler  Catholic  Majesty,  coming  voluntarily  to  reside  in  tbe  United  States, 
have  certainly  no  cause  of  complaint,  if  they  are  protected  by  tbe  same 
law  and  the  same  administration  of  law,  as  native  born  citizens  of  this 
country. 

"  They  bave  in  fact  some  advantages  over  tbe  citizens  of  tbe  State 
in  which  tbey  bappen  to  be,  inasmuch  as  they  are  enabled,  until  tbey 
become  citizens  themselves,  to  prosecute  for  anj'  injuries  done  to  their 
persons  or  property  in  the  courts  of  the  United  States,  or  tbe  State 
courts,  at  their  election. 

"  The  President  is  of  opinion,  as  already  stated,  that,  for  obvious 
reasons,  the  case  of  the  consul  is  different,  and  that  tbe  Government  of 
tbe  United  States  should  providefor  Mr.  Laborde  a  just  indemnity  j  and 
a  recommendation  to  that  effect  will  be  laid  before  Congress,  at  an  early 
period  of  its  approaching  session.  This  is  all  which  it  is  in  his  power 
to  do.  Tbe  case  may  be  a  new  one,  but  the  President  being  of  opinion 
that  Mr.  Laborde  ought  to  be  indemnified,  has  not  thought  it  necessary 
to  search  for  precedents." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  Caldcroii  do  la  Barca,  Nov.  13,  1851.     MSS. 

Notes,  Spain. 
lu  respect  to  tbe  riots  of  1851  at  New  Orleans,  sco  furtbcr  correspondence  in 

House  Ex.  Doc.  2,  32d  Cong.,  1st  sess.;  Mr.  Frclin<;lniy8en  to  Mr.  Baker, 

Apr.  18.  1H81  ;  MSS.  Inst.,  Venez. 
Mr.  Webster's  n-port  to  tbe  President  and  the  President's  mes8a<^o  in  respect  to 

indemnity   for  Spanisb  subjects  for  injuries  in  New   Orleans,  Aug.,  1851, 

arc  given  in  Ilyuse  Ex.  Doc.  113,  32d  Cong.,  Istsess.     See  also  infra,  ^S241 
Tbe  claim  based  on  indignity  to  tbe  Spanish  flag  is  discussed  aiipra,  ^  121. 

GOl 


§  226.]  CLAIMS.  [chap.  IX. 

The  Imperial  Govermuent  of  Brazil  is  liable  as  such  to  the  Govern- 
ment of  the  United  States  for  injuries  inflicted  in  one  of  its  provinces 
by  a  mob  which  was  set  on  by  the  governor  of  the  i)rovince. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Partridge,  Feb.  27,  1875.    MSS.  Inst.,  Brazil. 

"There  is  at  least  one  signal  instance  in  our  own  history  where  this 
Government  has  indemnified  foreigners  for  the  loss  of  their  property 
from  a  mob.  The  riots  at  Kew  Orleans  and  Key  West  are  referred  to, 
when  the  houses  and  shops  of  many  Spaniards  there  were  sacked.  It 
is  true  that  Mr.  Webster,  in  a  note  to  Mr.  Calderon  on  the  subject,  stated 
that  the  reparation  was  voluntarily  made,  and  not  from  any  sense  of 
obligation  on  the  part  of  this  Government  under  the  law  of  nations. 
In  that  case,  however,  there  was  no  proof,  or,  as  is  understood,  even 
any  charge  that  the  riot  was  instigated  by  those  authorities  who  were 
charged  with  the  duty  of  preserving  the  public  peace.  It  is  not  im- 
probable that  if  those  authorities  had  professedly  instigated  the  riot 
Mr.  Webster's  opinion  as  to  the  responsibility  of  this  Government  might 
have  been  different,  especially  if  the  sufierers  should  have  been  without 
a  remedy  through  the  courts. 

"It  is  the  duty  of  Brazil,  when  she  receives  the  citizens  of  a  friendly 
state,  to  protect  the  property  which  they  carrj'  with  them  or  may  acquire 
there.  If  persons  in  the  service  of  that  Government  connive  at  or  in- 
stigate a  riot  for  the  purpose  of  depriving  a  citizen  of  the  United  States 
of  his  property,  the  Imperial  Government  must  be  hold  accountable 
therefor." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Partridge,  Mar.  5,  1875.     MSS.  Inst.,  Brazil. 

A  Government  is  liable  internationally  for  damages  done  to  alien 
residents  by  a  mob  which  by  due  diligence  it  could  have  repressed. 
Mr.  Evarts,  Sec.  of  State,  to  Mr.  Gibbs,  May  28,  1878.     MSS.  lust.,  Peru. 

"Unlike  the  case  now  being  considered,  which  occurred  under  the 
immediate  eyes  of  the  Government,  the  case  referred  to  by  the  attorney 
took  i^lace  in  a  sea-board  town  more  than  a  thousand  miles  distant  from 
the  capital  of  the  United  States.  The  character  of  that  case  and  the 
action  of  Congress  thereon  appear  in  the  following  copy  of  a  resolu- 
tion of  Congress  March  3,  1853 : 

'^Besolved,  ^c,  That  the  President  of  the  United  States  be,  and  is  hereby,  requested 
to  cause  an  investigation  to  be  made  of  any  losses  that  may  have  been  sustained  by 
the  consul  of  Spain  and  other  persons  residing  at  New  Orleans  or  at  Key  West  in  the 
year  eighteen  hundred  and  fifty-one,  and  who  at  that  time  were  subjects  of  the  Queen 
of  Spain,  by  the  violence  of  individuals  arising  out  of  intelligence  then  recently  re- 
ceived at  those  places  of  the  execution  of  certain  persons  at  Havana,  in  Cuba,  by  the 
Spanish  authorities  of  that  i-sland,  and  that  such  losses  so  ascertained  to  persons  at 
that  time  subjects  as  aforesaid,  on  the  certificate  of  the  Secretary  of  State  that  the 
same  are  proven  to  the  satisfaction  of  the  President,  together  with  the  reasonable 
costs  of  the  investigation,  shall  be  paid  to  those  entitled  out  of  any  money  in  the 
Treasury  not  otherwise  appropriated. 

602 


CHAP.  IX.]  CLAIMS    BASED    ON    SPOLIATIONS.  [§  227. 

"The  Spanish  sufferers  from  that  cmcute  were  accordiugly  iudeni- 
nified." 
IMd. 

In  1880  certain  British  subjects  were  injured  by  a  mob  in  Texas.  It 
was  held  by  the  Secretary,  after  consulting  the  Attorney-General,  that 
as  the  offense  "  was  against  the  peace  and  dignity  of  Texas,"  it  was 
"cognizable  only  by  the  authorities  of  that  State.  So  far  as  their  legal 
remedy  against  the  assailants  is  concerned,  the  Dows  (the  parties  in- 
jured) stand  as  to  their  natural  and  civil  rights  in  precisely  the  same 
condition  as  to  recourse  to  the  State  tribunals  as  the  citizens  of  that 
State ;  and,  in  their  capacity  of  British  subjects,  they  can  resort  also 
to  the  courts  of  the  United  States  at  their  option  for  civil  redress  and 
indemnity." 

Mr.  Evarts,  Sec.  of  State,  to  Sir  E.  Tliorntoii,  May  22,  1880.     MSS  Notes,  Gr. 

Brit. 
The  message  of  President  Cleveland,  Mar.  2,  188G,  and  the  note  of  Mr.  Bayard, 

Sec.  of  State,  to  the  Chinese  minister,  of  Feb.  18,  1886,  in  reference  to  the 

riotous  attack  on  the  Chinese  in  "Wyoming  Territory,  in  Sept.,  1885,  are 

given  supra,  §  G7. 

VI.   CLAIMS  BASED  ON  SPOLIATIONS. 

(1)   FOPvEIGX   NEUTRALS   LIABLK   rOU  BREACH   OF   NEUTRALITY. 

§  227. 
As  to  neutral  duties  in  this  relation,  see  infra,  $  399. 

The  fact  that  Spain  was  at  the  time  in  alliance  with  France  in  a  war 
against  England  does  not  relieve  Spain  from  liability  to  the  United 
States  for  the  spoliation  of  United  States  merchant  vessels  in  Spanish 
ports  by  French  privateers. 

Mr.  Adams,  Sec.  of  State,  to  Mr.  Dc  Ouis,  Mar.  12,  1618;  MSS.  Notes,  For.  Leg. 

If,  through  the  negligence  of  the  Government  of  the  United  States, 
ports  of  the  United  States  are  made  tliebase  of  naval  operations  against 
a  belligerent  in  a  war  in  which  the  United  States  is  neutral,  the  Gov- 
ernment of  the  United  States  may,  on  proof  of  negligence,  be  liable 
internationally  to  such  belligerent  for  the  los.s. 

Mr.   Clay,  Sec.  of   State,  to  Mr.  Rivas  y  Salmon,  June  9,  1827.     MSS.  Notes, 
For.  Leg.    See  Mr.  Clay  to  Mr.  Tacon,  Oct.  29,  1827;  ibid.    See  infra,  $  396. 

But  the  Government  of  the  United  States  is  not  liable  to  foreign 
Governments  for  misconduct  of  its  private  citizens  within  their  juris- 
diction, such  citizen.s  not  being  in  any  sense  its  representatives. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Calderon  de  la  Barca,  Sopt.  17,  1839.     MSS. 
Notes,  Spain.     Sec  supra,  $  205. 

"  For  all  the  losses  and  damages  wliich  the  Government  and  citizens 
of  the  United  States  have  sustained  by  the  depredations  of  the  vessels 

003 


§  227.]  CLAIMS.  [chap.  IX. 

ill  (jiiestion,  the  United  States,  as  tliey  believe,  justly  lioUl  the  *;()vei'u- 
nieuts  of  the  countries  from  which  they  have  proceeded  responsible, 
whenever  they  have  been  duly  forewarned  and  have  omitted  proper 
measures  to  prevent  the  departure  of  such  hostile  expeditions." 

Mr.  Sewaiil,  Sec.  of  Stato,  to  Mr.  Dayton,  Dec.  17,  LSCa.     MSS.  lust.,  riaiico. 
Infra,  ^  JOG. 

The  Government  of  the  United  States  is  not  liable  to  llayti  for  armed 
vessels  escapinjx  from  United  States  ports, manned  by  insur^ients  a<^aiiist 
ILiyti,  when  such  escai)e  was  not  imputable  to  the  nej^liftence  or  coii- 
iiivaiicc  of  the  United  States. 

iMr.  Fish,  Sec.  of  Slate,  to  Mr.  ]5assett,  Oct.  i:<,  18(il).     MSS.  lust.,  llayli.     In- 
fra, ^  :5'JG. 

A  neutral  is  liable  to  a  belligerent  for  damages  sustained  l>y  I  lie  hit- 
ter's citizens  from  cruiseis  belonging  to  the  other  belligerent,  whose  iit- 
ting  up  and  issue  the  neutral  negligently  permitted. 

Geneva  coni'ercnce,  infra,  ^^306,  A0'2a. 

Claims  for  advanced  rates  of  insurance  and  for  loss  of  custom  for  the 
merchant  service  caused  by  a  neglect  of  neutral  duty,  or  for  i)rospect- 
ive  contingent  earnings,  do  not  form  a  basis  for  an  international  claim 
against  the  neutral. 

4  Papers  relating  to  Treaty  of  Washington,  20;  ibid.,  53. 

It  was  held  by  the  Geneva  commission  that  "  the  loss  in  the  transfer 
of  the  American  commercial  marine  to  the  British  Hag,"  "the  enhanced 
piiyments  of  insurance,"  and  the  prolongation  of  the  war  and  its  con- 
sequent expenses  (those  several  conditions  being  alleged  to  result  from 
the  depredations  by  the  Confederate  cruisers  fitted  in  British  ])orts) 
"do  not  constitute,  upon  the  principles  of  international  law  ai)i)licable 
to  such  cases,  good  foundation  for  an  award  of  compensation  or  com- 
putation of  damages  between  nations." 

4  Papers  relating  to  Treaty  of  Washington,  20  ;  infra,  ^  402o. 

The  Geneva  commission,  by  a  miijority  of  three  to  two,  held  that  "  the 
costs  of  pursuit  of  the  Confederate  cruisers  are  not,  in  the  judgment  of 
the  tribunal,  properly  distinguishable  from  the  general  expenses  of  the 
war." 

4  Papers  relating  to  Treaty  of  Washington,  53  ;  infra,  ^^  396,  402a. 

Other  questions  relating  to  violation  of  neutral  duties  aie  discussed,  n'/?'a, 

$$  395^.     The  proceedings  of  the  Geneva  conference  are  examined  more  fully, 

infra,  U3'JG,  402a. 
The  correspondence  of  the  United  States  with  Portugal  relative  to  the  claims 

of  American  citizens  against  Portugal  will  be  found  in  Brit  and  For.  St.  Pap., 

18o3-'54,  1134. 

"The  destruction  of  the  American  armed  brig  General  Armstrong 
by  a  Briti.sh  manof-war,  in  the  harbor  of  Fayal,  in  1814,  gave  rise  to  a 
long-continuing  correspondence,  which  resulted,  in  1851,  in  an  agree- 
ment to  refer  the  claims  growing  out  of  it  to  'the  arbitrament  of  a  sov- 
ereign, potentate,  or  chief  of  some  nation  in  amity  with  both  the  high 
conti\acting  parties.'    The  President  of  the  French  Eepublic  (afterwards 

G04 


CHAP.  IX.]  CLAIMS    BASED    ON    SPOLIATIONS.  [§  227. 

Xiipoleon  III)  Avas  selected  as  the  arbiter.    This  decision  was  adverse 
to  the  United  States." 

Mr.  J.  C.  B.  Davis,  Notes,  «fcc.     Infra,  ^  248,  399,  401. 

The  followirig  is  a  translation  of  the  material  parts  of  the  decision: 

"  Considering  that  it  is  clear,  in  fact,  tliat  the  United  States  were  at  war  with  Her 
Britannic  Majesty,  and  Her  Most  Faithful  Majesty  preserving  her  neutrality,  the  Amer- 
ican brig  the  General  Armstrong,  commanded  by  Captain  Reid,  legally  provided  witli 
letters  of  marque,  and  armed  for  privateering  purposes,  having  sailed  from  the  port  of 
New  York,  did,  on  the  2Gth  of  September,  lril4,  cast  anchor  in  the  port  of  Fayal,  one  of 
the  Azores  Islands,  constituting  part  of  Her  Most  Faithful  Majesty's  dominions; 

'•That  it  is  equally  clear  that,  on  the  evening  of  the  same  day,  an  English  squadron, 
commanded  by  Commodore  Lloyd,  entered  the  same  port ; 

"That  it  is  no  less  certain  that,  during  the  following  night,  regardless  of  the  rights 
of  sovereignty  and  neutrality  of  Her  Most  Faithful  Majesty,  a  bloody  encounter  took 
l)lace  between  the  Americans  and  the  English  ;  and  that  on  the  following  day,  the  27th 
of  September,  one  of  the  vessels  belonging  to  the  English  squadron  came  to  range  her- 
self near  the  American  privateer  for  the  purpose  of  cannonading  her ;  that  this  demon- 
stration, accompanied  by  the  act,  determined  Captain  Eeid,  followed  by  his  crew,  to 
abandon  his  vessel,  and  to  destroy  her  ; 

"Considering  that  if  it  be  clear  that,  on  the  night  of  the  26th  of  September,  some 
English  long-boats,  commanded  by  Lieutenant  Eobert  Fausset,  of  the  British  navy, 
approached  the  American  brig  the  General  Armstrong,  it  is  not  certain  that  the  men 
who  manned  the  boats  aforesaid  were  i^rovided  with  arms  and  ammunition; 

"  That  it  is  evident,  in  fact,  from  the  documents  which  have  been  exhibited,  that  the 
aforesaid  long-boats,  having  approached  the  American  brig,  the  crew  of  the  latter, 
after  having  hailed  them  and  summoned  them  to  be  off,  immediately  fired  upon  them, 
and  that  some  men  were  killed  on  board  the  English  boats,  and  others  wounded — some 
of  whom  mortally — without  any  attempt  having  been  made  on  the  part  of  the  crew  of 
the  boats  to  repel  at  once  force  by  force ; 

"Considering  that  the  report  of  the  governor  of  Fayal  proves  that  the  American 
captain  did  not  apply  to  the  Portuguese  Government  for  protection  until  blood  had 
already  been  shed,  and,  when  the  fire  had  ceased,  the  brig  General  Armstrong  came  to 
anchor  under  the  castle  at  a  distance  of  a  stone's-throw  ;  that  the  said  governor  states 
that  it  was  only  then  that  he  was  informed  of  what  was  passing  in  the  port ;  that  he 
did,  on  several  occasions,  interpose  with  Commodore  Lloyd,  with  a  view  of  obtaining 
a  cessation  of  hostilities,  and  to  complain  of  the  violation  of  a  neutral  territory ; 

"  That  he  effectively  prevented  some  American  sailors,  who  were  on  laud,  from  em- 
barking on  board  the  American  brig  fur  the  x)urpose  of  prolonging  a  conflict  which 
was  contrary  to  the  law  of  nations; 

"  That  the  weakness  of  the  garrison  of  the  island,  and  the  constant  dismantling  of 
the  forts,  by  the  removal  of  the  guns  which  guarded  them,  rendered  all  armed  inter- 
vention on  his  part  impossible; 

"Considering,  in  this  state  of  things,  that  Captaiu  lieid,  not  having  applied  from 
the  l>egiuning  for  the  intervention  of  the  neutral  sovereign,  and  having  had  recourse 
to  arms  in  order  to  repel  an  unjust  aggression  of  which  ho  pretended  to  bo  the  object, 
lias  thus  failed  to  respect  the  neutrality  of  the  territory  of  the  foreign  sovereign,  and 
released  that  sovereign  of  the  obligation  in  which  he  was,  to  atford  him  protection  by 
a'ly  other  means  than  that  of  a  pacific  intervention  ; 

"  From  which  it  follows  that  the  Government  of  Her  Most  Faithful  Majesty  taiinot 
be  held  responsilde  for  (h«!  results  of  the  collision  which  took  jjlace  in  coulrnipt  of  lier 
rights  of  sovereignty,  in  violation  of  the  neiilr.ility  of  her  territory,  and  without  tht* 
local  officers  or  lieutenants  having  been  required  in  proper  time,  ami  enabled  to  grant 
ai<l  and  j»roteclion  to  those  having  a  riglit  to  the  sauK; ; 

G05 


§  228.]  CLAIMS.  [chap.  IX. 

"Therefore  wo  have  decided,  and  we  declare,  that  the  clarm  presented  by  tbo  Gov- 
ernment of  the  United  States  against  Her  Most  Faithful  Majesty  has  no  foundation, 
and  that  no  indemnity  is  due  by  Portugal  iu  consequence  of  the  loss  of  the  American 
brig  the  General  Armstrong,  armed  for  privateering  purposes." 

For  the  report  of  the  Committee  on  Foreign  Relations  of  the  Senate  on  the 
claim  of  the  brig  "General  Armstrong,"  see  references,  ivfra,  ^  391),  and 
further  points  relative  thereto,  ivfra,  ^^  2A^,i0l. 

(2)   FOKKIGN   llKM.ir.Er.K.XTS   MAliLK   FOi:   AUUSE   OF   r.KM.K^KIIKXCY, 

§  228. 

"  I  have  it  iu  charf^e  from  the  rresidcut  to  assure  tbe  mercbautsof 
the  United  States  coucerued  iu  foreign  commerce  or  navigation  tliat 
due  attention  will  be  paid  to  any  injuries  tbey  maj'  suffer  on  tbe  bigh 
seas  or  in  foreign  countries  contrary  to  tbe  law  of  nations  or  to  ex- 
isting treaties,  and  tbat  on  tbe  forwarding  bitber  of  well  autbenticated 
evidence  of  tbe  same,  proper  proceedings  will  be  adopted  for  tbeir 
relief." 

Mr.  Jefterson,  Sec.  of  State,  to  Messrs.  Duke  &  Co.,  Aug.  31,  1793.  4  Jeff. 
Works,  31.     See  infra,  H  3:i8  ff. 

''  While  in  our  external  relations  some  serious  inconveniences  and  em- 
barrassments have  been  overcome  and  others  lessened,  it  is  Mitb  much 
l)aiu  and  deep  regret  I  mention  that  circumstances  of  a  very  unwelcome 
nature  have  lately  occurred.  Our  trade  has  suffered  and  is  suffering 
extensive  injuries  in  the  West  Indies  from  tbe  cruisers  and  agents  of 
the  French  Republic;  and  communications  have  been  received  from  its 
minister  here  which  indicate  the  danger  of  a  further  disturbance  of  our 
commerce  by  its  authority,  and  which  are  iu  other  respects  far  from 
agreeable. 

"  It  has  been  my  constant,  sincere,  and  earnest  wish,  in  conformity 
with  tbat  of  our  nation,  to  maintain  cordial  harmony  and  a  perfectly 
friendly  understandiiDgwitb  tbat  Republic.  This  wish  remains  unabated, 
and  I  shall  persevere  in  tbe  endeavor  to  fulfill  it  to  tbe  utmost  extent 
of  what  shall  be  consistent  with  a  just  and  indispensable  regard  to  tbe 
rights  and  honor  of  our  country  ;  nor  will  I  easily  cease  to  cherish  the 
expectation  that  a  spirit  of  justice,  candor,  and  friendship  on  the  part 
of  the  Republic  will  eventually  insure  success." 

President  Washington,  Eighth  Annual  Address,  1796. 

The  course  taken  by  the  Government  in  reference  to  litigation  conse- 
quent on  tbe  capture  of  United  States  vessels  by  British  cruisers  in 
1795-'9G  is  thus  stated  by  Mr.  Pickering  in  a  letter  dated  October  29, 
179G,  to  Mr.  King  : 

"  The  captures,  under  tbe  most  familiar  appellation  of  spoliations, 
were  considered  as  violations  of  tbe  law  of  nations.  The  citizens  thus 
spoiled  of  their  property  claimed,  and  were  entitled  to,  the  protection 
fiOfi 


CHAP.  IX.]  CLAIMS    BASED    ON    SPOLIATIONS.  [§  228. 

of  the  Goverument.  The  iujary  was  of  a  nature  so  atrocious  and  so  ex- 
tensive that  the  ordiuarj'  means  of  address  by  individual  applications  in 
the  pursuit  of  legal  remedies  seemed  to  be  superseded.  These  consid- 
erations,  combined  with  the  necessity  of  composing  the  public  mind, 
extremely  irritated  by  such  outrages  on  the  rights  of  our  citizens,  de- 
termined the  Government  to  undertake  to  procure  satisfaction  for  the 
sufferers  without  stipulating  for  a  reimbursement  of  the  expenses  which 
should  be  incurred,  and  I  fear  much  difficulty  would  attend  an  attempt 
to  recover  it." 

Mr.  Pickering,  Sec.  of  State,  to  Mr.  King,  Oct.  2G,  1793.     MSS.  Inst.,  Ministers. 
Infra,  $347/. 

"  That  the  present  Government  of  France  is,  by  the  established  prin- 
ciples of  public  law,  responsible  for  those  acts  (Napoleon's  aggressions) 
is  not,  at  this  day,  an  open  question  among  civilized  nations.  The  con- 
sequences of  an  opposite  doctrine  would  strike  at  the  root  of  all  cou- 
fidence  in  the  dealings  between  different  nations.  If  a  people  could 
discharge  itself  of  its  obligations  by  changing  a  Government  of  its 
own  establishment,  or  which  it  had  made  legitimate  by  its  acquiescence, 
all  security  for  national  transactions  would  be  at  an  end  and  one  of  the 
greatest  advantages  which  has  been  produced  by  the  lights  of  civiliza- 
tion and  improvement  defeated.  There  are  no  Governments  in  Europe 
to  which  France  could  look  for  countenance  in  maintaining  such  a 
doctrine,  for  there  are  none  who  have  not  themselves  acted  upon  a 
different  principle.  The  doctrine  advanced  is  no  less  inconsistent  with 
her  own  conduct.  In  the  indemnity  made  bj'  her  to  the  i^rincipal 
powers  of  Europe  in  the  years  1814  and  1815,  not  only  France  but  all 
those  powers  gave  their  assent  in  the  most  solemn  manner  to  the  prin- 
ciple for  which  the  United  States  contend.  It  is  in  vain  to  say  that 
those  indemnities  were  for  the  debts  of  the  preceding  Government,  and 
not  for  spoliations,  or  to  refer  to  the  condition  of  France  at  that  period. 
There  were  reasons  of  the  most  imperative  character,  to  which  it  is  not 
necessary'  to  make  to  you  particular  references,  and  which  are  not  ap- 
plicable to  the  United  States,  why  the  abandonment  of  claims  for  spo- 
liations on  their  part  should  not  furnish  a  rule  for  the  adjustment  of 
those  of  which  we  complain,  and  France  will  not,  it  is  beliereil,  avow 
even  now  that  those  who  came  to  deliver  her  from  oppression  availed 
themselves  of  their  power  to  increase  that  oppression  by  making  France 
responsible,  witliout  right,  for  injuries  which  they  themselves  had  re- 
ceived from  the  same  source.  So  far  from  that  being  then  supposed 
to  be  the  case,  the  principle  of  indemnitj'  was  claimed  by  the  allies  and 
distinctly  admitted  by  the  French  i)lenipotentiiiries,     *     #     « 

''The  [Berlin  and  Milan]  decrees  of  France,  out  of  which  those  claims 
have  arisen,  were  in  themselves  a  violation  of  the  established  law  of 
nations,  and,  as  such,  no  condemnation  under  them  could  justify  the 
seizures  which  had  been  made,  nor  exonerate  the  Goverument  from  its 

C07 


§  228.]  CLAIMS.  [criAr.  ix. 

liability  toinako  iiuleinuity  wlieuever  the  period  sliouUl  arrive  in  which 
acts  of  unmeasured  and  inexcusable  aggression  gave  way  to  a  just 
consideration  of  private  rights  and  a  respect  for  public  law.  So  far 
as  it  respects  all  seizures  i)rior  to  the  31st  of  July,  1809  (the  period  at 
which  the  treaty  of  1800  terminated),  they  were  in  direct  coutraveii- 
tiou  to  that  treaty.  But  even  admitting  that  France  had  a  right  to 
isoue  the  Berlin  and  INIilan  decrees,  the  mnnnor  of  their  execution  was^ 
in  most  cases,  such  as  to  sustain  the  claims  that  are  now  i)resented. 
Several  confiscations  were  made  by  imperial  decisions  without  previous 
trial  or  condemnation,  in  direct  violation  of  the  law  of  nations  and  of 
the  treaty  of  1800,  limiting  to  prize  courts  the  cognizance  of  such 
cases." 

Mr.  Van  liureu,  Sec.  of  State,  to  Mr.  Rives,  July  20,  1829.     MSS.  lust.,  Frauce. 
See  .as  to  liability  for  predecessor's  spoliations,  8U2)ra,^  1:57;  infra,  $  236;  for 
subsequcut  proceedings  against  France,  infra,  $  318. 

"  In  the  presentcase,  the  outrageous  acts  in  which  the  claim  originated 
would  not  only  have  justified  war  at  the  time,  but  it  has  been  doubted 
whether  the  forbearance  used  then  was  entirely  free  of  reproach.  France 
is  responsible  for  Frauce,  the  present  generation  for  that  which  is  past, 
the  existing  Government  for  that  which  preceded  it.  But  that  responsi- 
bility extends  only  to  the  payment  of  damages  for  former  wrongs;  of 
the  wrongs  themselves  the  jiresent  Government  is  entirely  innocent. 
The  injury  now  done  is  a  refusal  to  pay  a  most  just  debt,  now  liquidated 
by  the  Executive,  and  which  he  has  by  a  treaty  promised  to  pay.  That 
refusal  will  render  legitimate  any  means  America  may  think  proper 
to  adopt  for  redress,  ^\ilhout  excepting  war  itself.  If  not  accompanied 
by  insult  or  such  aggravating  circumstances  as  leave  no  other  resource, 
the  refusal  does  not  impose  upon  her  the  necessity  of  resorting  to  an 
ai)peal  to  arms." 

Mr.  Gallatin  to  Mr.  Everett,  Jan.,  1835.     2  Gallatin's  Writings,  495. 

A  belligerent  is  responsible  to  neutrals  for  capricious  and  wanton 
injury  indicted  on  their  persons  or  property. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dayton,  Mar.  13,  1863.     MSS.  lust.,  Frauce. 

One  belligerent  Governiuent  is  to  be  held  liable  for  a  wanton  de- 
struction of  neutral  property  in  an  invasion  of  the  territory  of  the  other 
belligerent. 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Logan.  June  7,  1883.    MSS.  Inst.,  Chili. 

Infra,  §^  347 #.      See  App.,  vol.  iii,  v^  228. 
The  report  of  Mr.  Pickering,  Sec.  of  State,  of  June  21,  1797,  ou   depredations 

on  the  commerce  of  the  United  States,  since  Oct.  1, 1796,  is  givou  in  2  Am, 

St.  Pap.  (For  Eel.),  28.    On  same  topic  see  3  Am.  St.  Pap.  (For  RcL),  557  ff. 
As  to  spoliations  since  1805,  see  House  Doc.  451,  19th  Cong.,  2d  sess.  ;  6  Am. 

St.  Pap.  (For  Rel.),  384;  in  -svliich  a  table  of  spoliations  of  all  classes  is 

given. 
The  message  of  President  J.  Q.  Adams,  of  May  23,  1828,  containing  correspond 

cnce  in  reference  to  Braziliau  spoliations,  is  contained  iu  House  Doc.  495, 

20th  Cong.,  1st  sess. ;  6  Am.  St.  Pap.  (For  Rel.),  1021. 
As  to  Danish  spoliations,  see  infra,  $  399 ;  2  Am.  St.  Pap.  (For.  Kcl.),  609  j  3  ibid. 

5il ;  8  Wait's  St.  Pap.,  205^7". 

608 


CHAP.  IX.]  CLAIMS    BASED    ON    SPOLIATIONS.  [§  228. 

For  President  Madison's  Dauisli  spoliation  messages,  with  accompauyiug  doc- 
uments, see  3  Am.  St.  Pap.  (For  Eel.),  328,  344;  correspondence  of  Mr. 
Wheaton  in  respect  to  these  claims  is  given  in  House  Doc.  249, 22d  Cong., 
1st  sess. 

As  to  treaty  with  Denmark,  see  supra,  $  147. 

As  to  French  spoliations  before  1800,  see  infra,  $  248. 
As  to  French  spoliation  claims,  see  further,  resolution  of  the  legislature  of  the  State 
of  Massachusetts  in  favor  of  the  passage  of  a  bill  to  indemnify  sufferers 
by,  Dec.  4,  1883,  Senate  Mis.  Doc.  6,  48th  Cong.,  Ist  eess. 

Petition  of  claimants  asking  that  the  unappropriated  balance  of  the  Geneva 
award  be  devoted  to  the  payment  of  the  claims.  Senate  Mis.  Doc.  29, 44th 
Cong.  2d  sess. 

Favorable  report  as  to  appointment  of  a  commission  on,  House  Rep.  1067,  47th 
Cong.,  1st  sess.     Favorable  report,  Senate  Eep.  306,  48th  Cong.,  1st  sess. 

Eecommending  settlement  by  Court  of  Claims,  with  right  of  appeal  to  Supreme 
Court,  House  Eep.  109,  48th  Cong.,  1st  sess. 

History  of,  House  Eep.  1441,  48th  Cong.,  Ist  sess.    See  infra,  §$  148^. 

President  Arthur's  message  of  July  3, 1884,  transmitting  report  of  the  Secretary 
of  State  relative  to  claims  of  United  States  citizens  against  France,  Senate 
Ex.  Doc.  205,  48th  Cong.,  1st  sess. 
As  to  French  spoliations,  the  following  papers  may  also  be  consulted: 

Mr.  Pickering's  report  of  Feb.  28,  1798,  1  Am.  St.  Pap.  (For.  Eel.),  748.  See 
also  infra,  $  402a. 

For  correspondence  in  1810  of  Mr.  Armstrong,  minister  at  Paris,  with  the 
French  Government  and  his  own  Government,  see  3  Am.  St.  Pap.  (For. 
Eel.),  380^.     See  ibid.,  500^.,  for  other  papers. 

In  Senate  Doc.  437,  19th  Cong.,  1st  sess.,  6  Am.  St.  Pap.  (For.  Eel.),  3,  are  given 
papers  relative  to  spoliations  both  before  and  after  the  convention  of  1800. 

The  correspondence  of  the  United  States  with  France  between  1816  and  1822 
is  given  in  the  Brit,  and  For.  St.  Pap.  for  1820-'21,  vol.  8.,  401.  See  also 
same  work,  1822-'23,  vol.  10,  1061  ;  1824-'2r),  vol.  12,  623,  624 ;  1825-'26,  vol. 
13,  1143. 

Other  documents  relating  thereto  will  be  found  in  House  Doc.  369,  18th  Cong., 
1st  sess.  ;  5  Am.  St.  Pap.  (For.  Eel.),  282;  Mr.  Forsyth's  House  report  of 
May  24, 1824  ;  House  Doc,  376,  18th  Cong.,  1st  sess. 

For  French  spoliations  since  1806,  see  House  Doc.  387,  18th  Cong.,  2d  sess.  ;  5 
Am.  St.  Pap.,  (For.  Eel.),  476.     Supra,  U  148  jf. 

President  Jackson's  message  of  December  27,  1834,  giving  documents  con- 
nected with  the  spoliation  treaty  is  in  House  Ex.  Doc.  40,  23d  Cong.,  2d 
sess.  His  message  to  the  Senate,  of  February  25,  1835,  giving  the  cor- 
respondence in  that  year  on  the  same  claims,  is  in  Senate  Doc.  145,  23d  Cong., 
2d  sess. 

The  documents  accompanying  President  Jackson's  message  on  the  opening  of 
the  first  session  of  the  24th  Congress,  Dec.  7,  1835,  contain  additional  cor- 
respondence as  to  the  French  spoliation  treaty.  Furtlier  correspondence 
ou  the  same  subject  is  attached  to  the  President's  message  of  Jan.  18,  1836, 
Senate  Docs.  62,  63,  and  Feb.  15,  1836,  Senate  Doc.  161,  24th  Cong.,  1st 
sess.  The  correspondence  as  to  British  mediation  will  bo  found  attached 
to  the  President's  message  of  Feb.  22, 1836,  Senate  Doc.  187,  24th  Cong.,  Ist 
sess.  See  supra,  ^  49;  infra,  ^$  318^,  where  the  circumstances  of  the  "me- 
diation" are  stated.     Sec  also  House  Ex.  Docs.  67,  116. 

As  to  President  .Jackson's  furtlier  proceedings  ou  these  claims,  see  infra,  ij  318. 

As  to  treaties  with  France,  see  supra,  H  I'l^iT- 

Ynv  valuabhi  list  of  French  spoliation  cl.i.iins  docninents,  k((i  Imllclin  of  (ho 
Hoston  Public  T>ibrary,  Vol.  0,  No.  5. 

S.  Mis.  lOL'—vor.  ir .".()  <i01) 


§  228.]  CLAIMS.  [chap.  IX. 

As  to  British  spoliations  : 

A  note  of  Mr.  Monroe,  minister   to  England,  to  the  British  foreign  secretary, 

discussing  British  abuse  of  belligerent  rights,  will  be  found  in  2  Am.  St. 

Pap.  (For.  Rel.)7:i4/. 
A  succinct  narrative  of  the  spoliations  of  Great  Britain  prior  to   1811  is  given 

in  the  notes  of  Mr.  Monroe,  Sec.  of  State,  to  Mr.  Foster,  British  minister  at 

Washington,  July  23  and  Oct.  1,  1811,  and  .Tan.  14, 1812.    MSS.  Notes,  For. 

Leg.     3  Am.  St.  Pap.  (For.  Rol.),  439. 
The  claims  for  British  violations  of  neutrality  arcdiscuHsed  siijira,  ^  2.'7  ;  infra^ 

$  397. 

The  distinction  between  I'rencli  and  English  spoliation  in  the  war  of 
1812  is  thus  stated  by  JNIr.  C3.  J.  Ingersoll  (1  Injieisoll's  Late  War,  37) : 
"The  French  decrees  were,  indeed,  as  obnoxious  in  their  Ibrniation  and 
design  as  the  British  orders;  but  the  Government  of  France  claimed 
and  exercised  no  right  of  impressment,  and  the  maritime  spoliations  of 
France  were,  comparatively,  restricted,  not  only  by  her  own  weakness 
on  the  ocean,  but  by  the  constant  and  pervading  vigilance  of  the  fleet 
of  her  enemy." 

The  violation  of  the  laws  of  war  incident  to  the  burning  of  Washington  by  tho 
British  in  1814  is  noticed  infra,  ^  340. 

After  the  treaty  of  Ghent  the  chiims  for  maritime  spoliations  suffered 
by  citizens  of  the  United  States  during  the  i)receding  European  wars 
may  be  classified  as  follows : 

Those  against  Great  Britain  claimed  to  be  extinguished  by  the  war 
of  1812. 

As  against  France  the  claims  prior  to  ]800  had  been,  it  was  alleged, 
assumed  by  the  United  States  in  its  negotiations  with  France  in  18U0- 
1803;  infni,  §  248.  The  subsequent  claims  were  the  subjects  of  con- 
stant controversy  with  France,  and  were  finally  liquidated  in  183C;  in- 
fra, §  318. 

None  of  the  claims  against  Spain,  Holland,  Naples,  and  Denmark 
had  been  settled,  and  these  were  all  the  subjects  of  diplomatic  pressure. 

As  to  treaties  with  Great  Britain,  see  supra,  $  150^. 

As  to  the  Netherlands,  see  House  Doc.  402,  18th  Cong.,  2d  sess. ;  5  Am.  St.  Pap. 
(For.  Kel.),  585.     See  as  to  treaty,  si/jj?-a,  $  155. 

As  to  Sicily,  see  report  of  Mr.  J.  Q.  Adams,  House  Doc.  295, 15th  Cong.,  Ist  sess. ; 
4  Am.  St.  Pap.  (For.  Kel.),  ICO,  containing  Mr  Pinkney's  correspondence 
with  the  Sicilian  Government.  Tho  correspondence  relative  to  the  spoli.a- 
tions  under  Joachim  Murat,  when  King  of  Naples,  will  be  found  in  Senate 
Doc.  70,  22d  Cong.,  2d  sess.  See  infra,  §  236,  supra,  $  137  ;  as  to  treaty,  see 
supra,  5  152. 

As  to  Spain,  the  correspondence  in  1803  of  Mr.  Charles  Pinckncy,  minister  at 
Madrid,  with  the  Spanish  Government  in  reference  to  Spanish  spoliations, 
isgiven  in  2Am.  St.  Pap.  (For.  Re\.),596  ff,  together  with  the  proposed  con- 
vention of  May  23,  1803.  See  also  House  Doc.  340,  IGth  Cong.,  1st  sess. ;  5 
Am.  St.  Pap.  (For.  Rel.),  36,  834;  House  Doc.  378,  18th  Cong.,  2d  sess., ;  5 
Am.  St.  Pap.  (For.  Rel.),  368;  Senate  Rep.  390, 18th  Cong.,  2d  sess. ;  5  Am. 
St.  Pap.  (For.  Rel.),  489. 

As  to  Spanish  depredations  on  commerce  of  the  United  States  on  the  Cuban 
coast  in  1820-'21,  see  papers  connected  with  President  Jlonroc's  messages 
of  Jan.  31, 1822,  and  Feb.  5,  1823,  House  Doc.  326,  1st  sess.,  17th  Cong. ;  4  Am. 
St.  Pap.  (For.  Rel.),  311. 

As  to  settlement  of  these  claims  by  cession  of  Florida,  see  supra,  $  161  a. 

010 


CHAP.  IX.]  CLAIMS   BASED    OX    SPOLIATIONS.  [§228. 

B3'  the  convention  of  1834  Spain  agreed  to  become  responsible  in  the 
sum  of  twelve  millions  of  rials  vellon,  with  interest,  for  damages  inflicted 
on  the  commerce  of  the  United  States  during  the  struggle  of  the  Spanish 
American  colonies  for  independence. 

Ex.  Doc.  147, 2d  sess.,  23d  Cong.,  90.    See  supra,  $  161  ff. 

As  to  Swedish  spoliatious  prior  to  1816,  see  correspondence  given  by  President 

Monroe  on  April  18,  1820,  Senate  Doc.  318,  1st  sess.,  16tb  Cong.;  4  Am.  St. 

Pap.  (For.  Eel.),  635.  As  to  treaty  see  supra,  $  162. 
As  to  seizure  of  steauisliip  Meteor,  see  Mr.  Seward's  report,  Apr.  3,  1866,  Senate 

Ex.  Doc.  39,  39tli  Cong.,  1st  sess.;  infra,  §  396. 

As  has  been  elsewhere  noticed,  an  alien  who  knowingly'  places  his 
goods  in  a  country  which  is  the  seat  of  war,  cannot  recover  their  value 
from  the  belligerent  by  whom  they  are  confiscated,  if  such  confiscation 
was  in  accordance  with  the  laws  of  war.  See  infra,  §§  338,  341,  343, 
352,  373;  supra,  §§  203,  224,  228.  As  authorities  on  this  point  see  Mrs. 
Alexander's  Cotton,  2  Wall.,  404;  U.  S.  v.  Padelford,  9  Wall.,  531 ;  La- 
mar V.  Browne,  93  U.  S.,  187;  Young  v.  TJ.  S.,  97  U.  S.,  39,  where  the 
subject  is  fully  discussed. 

There  is  no  distinction  between  captures,  in  violation  of  our  neutrality, 
by  i^ublic  ships  and  by  privateers. 

L'luvincible,  1  "Wbeat.,  238;  The  Santissima  Trinidad,  7  ibid.,  283. 

The  probable  or  possible  profits  of  an  unfinished  voyage  afford  no  rule 
to  estimate  the  damages  in  a  case  of  marine  trespass. 

The  Amiable  Xancy,  3  Wheat.,  546  ;  La  Amistad  do  Eues,  5  ihid.,  385. 

The  prime  cost  or  value  of  the  property  lost,  and,  in  case  of  injury, 
the  diminution  in  value  by  reason  of  the  injury,  with  interest  thereon, 
affords  the  true  measure  of  damages  in  such  a  case. 
The  Amiable  Nancy,  3  Wheat.,  546. 

A  vessel  was  boarded  by  a  crew  from  a  privateer,  plundered  of  her 
papers  and  various  other  things,  and  then  allowed  to  proceed  on  her 
voyage.  She  was  afterwards  captured  by  another  belligerent,  as  was 
alleged,  for  lack  of  the  papers  of  which  the  first  captors  had  deprived 
her,  and  was  compelled  to  pay  a  ransom.  A  claim  against  the  first 
captors  for  the  money  so  paid  was  disallowed,  the  expenditure  being 
considered  unnecessary,  as  the  mere  absence  of  papers  is  not  a  just 
ground  of  condemnation. 
Ibid. 

An  alleged  Danish  vessel  was  seized  by  an  American  vessel  as  French 
property,  on  the  south  side  of  the  island  of  St.  Domingo,  and,  whilst 
awaiting  examination,  under  the  American  flag,  was  seized  by  a  British 
ship  and  taken  to  Jamaica  and  there  condemned.  It  was  ruled  that  as 
the  fir.st  captors  were  not  liwble  for  capturing  and  detaining  tlic  vessel 
long  enough   for  examination,  nor  Cor  the  second  captuic.  and  as  the 

on 


§§  229, 230.]  CLAIMS.  [chap.  ix. 

Government  of  the  United  States  is  not  liable  even  for  the  unlawful 
captures  of  its  subjects,  the  United  States  were  not  bound  to  indemnify 
the  Danish  owner. 

1  Op.,  106,  Lincoln,  1802. 

(3)   IIOW   FAIl   PUBLIC   SHIPS   AUK    LIABLK   FOR  TORTS. 

§229. 

A  claim  for  damages  exists  against  a  vessel  of  the  United  States 
guilty  of  a  maritime  tort,  as  much  as  if  the  offending  vessel  belonged  to 
a  private  citizen ;  and  although,  for  reasons  of  public  policy,  the  claim 
cannot  be  enforced  by  direct  proceedings  against  the  vessel,  yet  it  will 
be  enforced,  by  the  courts,  whenever  the  property  itself,  upon  which 
the  claim  exists,  becomes,  through  the  aflirmative  action  of  the  United 
States,  subject  to  their  jurisdiction  and  control.  Therefore,  where  a 
^)rize  ship,  in  charge  of  a  i^rize-master  and  crew,  committed  a  maritime 
tort  by  running  into  and  sinking  another  vessel,  the  damages  of  the 
owners  of  the  latter  were  ordered  to  be  assessed  and  paid  out  of  the 
proceeds  of  the  sale  of  the  former,  before  distribution  to  the  captors. 

The  Siren,  7  Wall.,  152. 

VII.    CLAIMS    BASED     OX    DENIAL    OR     UNDUE    DISCRIMINATION   OH 

JUSTICE. 

(1)   SUCn  CLAIMS   GROUND   FOR  INTERPOSITION. 
§230. 

As  to  protection  of  citizens  abroad,  see  supra,  $  180. 

"  It  is  obvious  enough  that  when  we  ask  redress  from  a  Government 
and  not  from  their  tribunals  for  injuries  arising  from  flagrant  violations 
of  the  law  of  nations,  it  is  i)reposterous  to  refuse  it,  because  the  injury 
has  been  consummated,  the  capture,  trial,  and  condemnation  under 
unlawful  decrees  being  all  part  of  the  same  system,  to  icliich  the  final 
(judicial)  jyrocess  and  decision  can  give  no  sanction^ 

Mr.  Gallatin  to  Mr.  Price,  Feb.  11,  1824 ;  2  Gallatin's  Writings,  278.     See  ivfra, 
^  238,329a;  supra,  §  180. 

"The  proposition  that  those  who  resort  to  foreign  countries  are  bound 
to  submit  to  their  laws  as  expounded  by  the  judicial  tribunals  is  not 
disputed.  The  exception  to  this  rule,  however,  is  that  when  palpable 
injustice,  that  is  to  say,  such  as  would  be  obvious  to  all  the  world,  is 
committed  by  that  authority  towards  a  foreigner,  for  alleged  infractions 
of  municipal  law,  of  treaties,  or  of  the  law  of  nations,  the  Government 
of  the  country  whereof  the  foreigner  is  a  citizen  or  subject  has  a  clear 
right  to  hold  the  country  whose  authorities  have  been  guilty  of  the 
wrong,  accountable  therefor.  This  right  is  not  weakened  because  tiie 
judicial  may  be  independent  of  the  executive,  or  both  of  the  legislative 
012 


CHAP.  IX."]  UNDUE    DISCRIMINATION    OF    JUSTICE.  [§  230. 

power.  Complaint  is  made  to  the  executive  by  the  foreign  Govern- 
ment because  that  is  the  only  proper  medium  and  organ  of  communica- 
tion, and  not  because  it  may  be  supposed  to  be  within  the  competency 
of  that  department  to  redress  the  grievance." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Semple,  Feb.  12, 1839.     MSS.  Inst.,  Colombia. 

"Our  citizens  who  resort  to  countries  where  the  trial  by  jury  is  not 
known,  and  who  may  there  be  charged  with  crime,  frequently  imagine, 
when  the  laws  of  those  countries  are  administered  in  the  forms  custo- 
mary therein,  that  they  are  deprived  of  rights  to  which  they  are  entitled, 
and  therefore  may  expect  the  interference  of  their  own  Government. 
But  it  must  bo  remembered,  in  all  such  cases,  that  they  have  of  their 
own  free  will  elected  a  residence  out  of  their  native  land,  and  preferred 
to  live  elsewhere,  and  under  another  Government,  and  in  a  country  in 
which  difi'erent  laws  prevail. 

"They  have  chosen  to  settle  themselves  in  a  country  where  jury  trials 
are  not  known ;  where  representative  government  does  not  exist  j  where 
the  privilege  of  the  writ  of  habeas  corpus  is  unheard  of,  and  where  judi- 
cial proceedings  in  criminal  cases  are  brief  and  summary.  Having  made 
this  election,  they  must  necessarily  abide  its  consequences.  No  man 
can  carry  the  aegis  of  his  national  American  liberty  into  a  foreign  coun- 
trj-,  and  expect  to  hold  it  up  for  his  exemj^tion  from  the  dominion  and 
authority  of  the  laws  and  the  sovereign  power  of  that  country,  unless 
he  is  authorized  to  do  so  by  virtue  of  treaty  stipulations." 

Report  of  Mr.  Webster,  Sec.  of  State,  to  tlie  President,  Dec.  23,  1851.  6  Web- 
ster's Works,  527,  528.  Thrasher's  case.  See  as  to  this  case,  supra,  $$  190, 
203;  infra,  §$244,  257. 

The  refusal  of  a  Chilian  court,  in  1852,  on  the  trial  for  crime  of  an 
American  citizen,  to  hear  testimony  on  behalf  of  the  defendant,  would, 
if  sustained  by  the  Chilian  Government,  be  considered  by  the  United 
States  as  "a  gross  outrage  to  an  American  citizen,  for  which  it  will  as- 
suredly hold  Chili  responsible." 

Mr.  Conrad,  Acting  Sec.  of  State,  to  Mr.  Peyton,  Oct.  12,  1852.  MSS.  Inst., 
Chili. 

The  Government  of  Chili  is  responsible  to  the  TTnited  States  for  the 
spoliation  of  property  belonging  to  citizens  of  the  United  States  by 
officers  of  Chili. 

Mr.  Everett,  Sec.  of  State,  to  Mr.  Carvallo,  Feb.  23,  1853.     MSS.  Notes,  Chili. 

"The  system  of  proceedings  in  criminal  cases  in  the  Austrian  Gov- 
ernment haw,  undoubtedly,  as  is  the  case  in  most  other  absolute  coun- 
tries, many  har.sh  features,  and  is  deficient  in  many  safeguards  which 
our  laws  i)rovide  for  the  security  of  the  accused ;  but  it  is  not  within 
the  competence  of  one  in(l(!|)ond('nt  power  to  reform  the  jurisprudence 
of  others,  nor  has  it  the  right  to  regard  as  an  injury  the  application  of 
the  judicial  system  and  established  mode  of  proceedings  in  foreign  coun- 

oi:{ 


§  230.]  CLAIMS.  [CITAP.  IX. 

tries  to  its  citizens  when  fairly  brought  under  their  operation.  All  we 
can  ask  of  Austria,  and  this  we  cau  demand  as  a  right,  is,  that  iu  her 
proceedings  against  American  citizens  prosecuted  for  offenses  committed 
within  her  jurisdiction,  she  should  give  them  the  full  and  fair  benefit  of 
her  system,  such  as  it  is,  and  deal  Avith  them  as  she  does  with  her  own 
subjects  or  those  of  other  foreign  powers.  She  cannot  be  asked  to  modify 
her  mode  of  i)roceedings  to  suit  our  views,  or  to  extend  to  our  citizens 
all  the  advantages  which  her  subjects  would  have  uiuler  our  better  and 
more  humane  system  of  criminal  jurisprudence." 

Mr.  Marcy,  Sec.  of  State,  to  Mr,  Jackson,  Apr.  6,  1855.    MSS.  Inst.,  Austria. 

"Should  it,  however,  be  established  to  your  satisfaction  that  Dr. 
Belcredi  is  an  American  citizen,  the  right  of  this  Government  to  inter- 
fere in  his  case  would  be  very  questionable.  As  such  citizen,  he  is  sub- 
ject to  the  laws,  civil  and  criminal,  of  the  country  within  which  he  is 
domiciled  or  resides,  and  the  United  States  could  not  make  the  proceed- 
ings against  him  a  ground  of  complaint  unless  those  laws  were  contrary 
to  treaty  stipulations  or  were  used  in  bad  faith  or  oppressively  to  inflict 
injuries  upon  him." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Fay,  Nov.  16,  1855.     MSS.  Inst.,  Switz. 

"This  State  of  affairs  was  brought  to  a  crisis  in  May  last  by  the  pro- 
mulgation of  a  decree  levying  a  contribution  pro  rata  upon  all  the  capi- 
tal in  the  Eepublic,  between  certain  specified  amounts,  whether  held  by 
Mexicans  or  foreigners.  Mr.  Forsyth,  regarding  this  decree  in  the  light 
of  a  '  forced  loan,'  formally  protested  against  its  application  to  his  coun- 
trymen, and  advised  them  not  to  pay  the  contribution,  but  to  suffer  it 
to  be  forcibly  exacted.  Acting  upon  this  advice  an  American  citizen 
refused  to  pay  the  contribution,  and  his  property  was  seized  bj'^  armed 
men  to  satisfy  the  amount.  l!fot  content  with  this,  the  Government  pro- 
ceeded still  further  and  issued  a  decree  banishing  him  from  the  country. 
Our  minister  immediately  notified  them  that,  if  this  decree  should  be 
carried  into  execution,  he  would  feel  it  to  be  his  duty  to  adopt  'the  most 
decided  measures  that  belong  to  the  powers  and  obligations  of  the  re- 
presentative oflice.'  Notwithstanding  this  warning,  the  banishment 
was  enforced,  and  Mr.  Forsyth  promptly  announced  to  the  Government 
the  suspension  of  the  political  relations  of  his  legation  with  them,  until 
the  pleasure  of  his  own  Government  should  be  ascertained. 

"This  Government  did  not  regard  the  contributions  imposed  by  the 
decree  of  the  15th  May  last  to  be  in  strictness  a  '  forced  loan,'  and  as  such 
prohibited  by  the  10th  article  of  the  treaty  of  1826  between  Great  Brit- 
ain and  Mexico,  to  the  benefits  of  which  American  citizens  are  entitled 
by  treaty;  yet  the  imposition  of  the  contribution  upon  foreigners  was 
considered  an  unjust  and  oppressive  measure.  Besides,  internal  factions 
in  other  parts  of  the  Republic  were  at  the  same  time  levying  similar 
exactions  upon  the  property  of  our  citizens  and  interrupting  their  com- 
merce. There  had  been  an  entire  failure  on  the  part  of  our  minister  to 
614 


CHAr.  IX.]  UNDUE    UISCRIMINATIOX    OF    JUSTICE.  [§  230. 

secure  redress  for  the  wrougs  which  our  citizeus  had  eudured,  uotwith- 
standiug  his  perse veriug  efforts.  Aud  from  the  temper  manifested  by 
the  Mexican  Government  he  had  repeatedly  assured  us  that  no  favorable 
change  could  be  expected  until  the  United  States  should  'give  striking 
evidence  of  their  will  and  power  to  protect  their  citizens,'  aud  that  'severe 
chastening  is  the  only  earthly  remedy  for  our  grievances.'  From  this 
statement  of  facts,  it  would  have  been  worse  than  idle  to  direct  Mr. 
Forsyth  to  retrace  his  steps  and  resume  diplomatic  relations  with  that 
Government,  and  it  was  therefore  deemed  proper  to  sanction  his  with- 
drawal of  the  legation  from  the  city  of  Mexico." 

President  Buclianau,  Second  Annual  Message,  1858. 
As  to  inequality  of  taxation,  see  supra,  §  204. 
As  to  protection  generally,  see  supra,  ^  189. 

"It  is  quite  true,  for  example,  that  under  ordinary  circumstances  when 
citizens  of  the  United  States  go  to  a  foreign  country  they  go  with  an 
implied  understanding  that  thej^  are  to  obey  its  laws,  and  submit  them- 
selves, in  good  faith,  to  its  established  tribunals.  When  they  do  busi- 
ness with  its  citizens,  or  make  private  contracts  there,  it  is  not  to  be 
expected  that  either  their  own  or  the  foreign  Government  is  to  be  made 
a  party  to  this  business  or  these  contracts,  or  will  undertake  to  deter- 
mine any  disputes  to  which  they  may  give  rise.  The  case,  however,  is 
very  much  changed  when  no  impartial  tribunals  can  be  said  to  exist  in 
a  foreign  country,  or  when  they  have  been  arbitrarily  controlled  bj'  the 
Government  to  the  injury  of  our  citizens.  So,  also,  the  case  is  widely 
different  when  the  foreign  Government  becomes  itself  a  party  to  im- 
portant contracts,  and  then  not  only  fails  to  fulfill  them,  but  capriciously 
annuls  them,  to  the  great  loss  of  those  who  have  invested  their  time 
and  labor  and  capital  from  a  reliance  upon  its  own  good  faith  and  jus- 
tice." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Dimitry,  May  3,  1860.     MSS.  Inst.,  Am.  States. 

A  fraudulent  decision  by  a  foreign  judge  condemning  an  American 
ship,  is  a  ground  for  a  demand  for  redress  by  this  Government  from  the 
Government  of  such  judge. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Webb,  Dec.  7,  1867.   MSS.  Inst.,  Brazil.    See 
infra,  $  329a. 

"I  have  therefore  to  instruct  you  to  bring  this  whole  subject  to  the 
notice  of  the  Spanish  Government,  and  to  say  that  the  President  hopes 
that  immediate  steps  will  be  taken  for  the  release  of  all  the  citizens  of 
the  United  States  who  may  be  held  in  custody  in  Cuba  in  violation  of 
the  provisions  of  the  treaty  of  179.5,  or  for  their  immediate  trial  under 
the  guarantees  and  with  the  rights  secured  by  that  treaty.  You  are 
also  instructed  to  ask  for  the  restoration  to  the  citizens  of  the  United 
Slates  of  tlieir  properties  and  estates,  so  far  as  the  same  have  been 
arbitrarily  etnbargocd  in  violation  of  th(^  provisions  of  that  tr(;aty. 
You  will  also  endeavor  to  «ec;ire  some  mode  for  the  early  aud  equita- 

015 


$  230.]  CLAIMS.  [chap.  IX. 

bio  indemnification  and  satisfaction  to  the  several  parties,  whose  rights 
have  been  violated,  of  the  amounts  which  should  rightfully  come  to 
each  claimant  for  the  illegal  detention  of  his  property  or  his  person. 
You  will  say  that  this  suggestion  is  made  in  the  interest  of  peace,  of 
justice,  and  of  good  will,  in  order  to  secure  a  measure  of  damages  in 
each  case  which  shall  be  just  as  between  the  two  Goverriments.  You 
will  also  say  that  it  is  extremely  desirable  to  have  the  investigation 
conducted  in  this  country.  It  cannot  be  done  in  Spain  without  subject- 
ing the  claimants  to  unnecessary  expense.  It  cannot  be  done  in  Cuba, 
at  present,  without  subjecting  many  of  them  to  personal  danger.  In 
this  connection  I  must  again,  on  behalf  of  this  Government,  express,  in 
the  interest  of  good  will  and  of  the  continued  good  understanding 
which  we  desire  to  maintain  with  Spain,  the  strong  desire  of  the  Presi- 
dent that  the  Government  at  Madrid  will  confer  fresh  powers  upon  Mr. 
Lopez  Koberts  (or  upon  such  other  person  on  this  side  of  the  Atlantic 
as  may  be  selected  for  that  purpose)  to  arrange  all  such  questions  with 
this  Government. 

"The  Spanish  authorities  in  Cuba  seem  to  be  clothed  with  absolute 
power  for  the  commission  of  such  acts  as  are  now  complained  of,  but 
when  redress  is  sought,  we  are  referred  to  the  distant  Cabinet  of  Madrid, 
where  it  is  often  found  necessary  to  refer  again  to  Cuba  for  information, 
and  the  case  is  thus  suspended  and  delayed,  to  the  grievous  injury  of 
the  parties  and  at  the  hazard  of  irritation  from  the  delay  of  which  the 
necessity  is  not  apparent  to  the  imijatient  sufferers  or  to  the  public. 

"The  President  has  respected  the  Spanish  claim  of  sovereignty  over 
the  Island  of  Cuba  during  the  present  contest  against  a  strong  sym- 
pathetic pressure  from  without.  Spain  owes  it  to  the  United  States  as 
well  as  to  her  own  traditional  honor  and  sense  of  justice  that  her  sov- 
ereignty shall  not  be  used  for  the  oppression  and  injury  of  the  citizens 
of  this  Kepublic." 

Mr,  Fish,  Sec.  of  State,  to  Mr.  Sickles,  June  24,  1870.     MSS.  lust.,  Spain  ;  For. 
Rel.,  1870. 

"  I  inclose  a  copy  of  a  decree  said  to  have  been  made  by  a  military 
tribunal  in  Cuba,  and  published  in  the  Diario  de  la  Marina  on  the  9th 
of  Xovember,  current. 

"  This  decree  purx^orts  to  condemn  to  death  sundry  persons  named  in 
it  as  the  central  republican  junta  of  Cuba  and  Porto  Kico,  established 
in  Xew  York,  and  to  confiscate  their  property.  It  appears  aflBrmatively 
in  the  decree  that  none  of  the  condemned  had  appeared  before  the  court. 

"  This  revolutionary  body,  known  as  the  Cuban  junta,  voluntarily 
disbanded  itself  about  one  month  before  this  decree  was  made,  and  an- 
nounced its  intention  to  discontinue  any  hostile  purpose  it  might  have 
entertained  against  Spanish  rule  in  Cuba.  During  its  previous  history 
its  acts,  so  far  as  conflicting  with  the  laws  of  the  United  States  and  the 
international  duties  of  this  Government,  were  repressed  by  the  Presi- 
(310 


CHAP.  IX.]  UNDUE    DISCRIMITATIOX    OF    JUSTICE.  [§  230. 

(leut.  This  Depaitmeut  has  also  beeu officially  iuformed  by  Mr.  Koberts 
that  the  state  of  affairs  iu  Cuba  is  regarded  as  a  favorable  oue  by  the 
Spanish  Government,  and  that  in  consequence  of  that  the  extraordi 
nary  powers  previously  vested  in  him  had  been  withdrawn.  This 
Government  has,  therefore,  seen  with  surprise  and  regret  the  announce- 
ment of  a  policy  in  Cuba  which  is  apparently  uncalled  for  by  any 
present  emergencies,  which  is  not  in  harmony  with  the  ideas  now  enter- 
tained by  the  most  enlightened  nations  as  to  the  treatment  of  political 
offenses,  and  which,  as  it  appears  to  us,  will  tend  to  continue  the  un- 
hajipy  disturbances  which  exist  in  Cuba.  We  recognize,  however,  that 
so  far  as  this  is  a  purely  domestic  question  between  the  Government  of 
Spain  and  the  persons  or  properties  of  those  who  are  subject  to  that 
Government,  the  United  States  have  no  other  right  to  interpose  than 
that  growing  out  of  the  friendly  relations  which  have  always  existed 
between  them  and  Spain,  and  the  good  faith  with  which  they  have  ob- 
served their  duties  and  obligations  in  the  contest.  It  appears,  how- 
ever, that  on  this  list  are  to  be  found  the  names  of  some  persons  who 
claim  to  be  citizens  of  the  United  States.  As  to  each  such  person,  you 
will  inform  the  minister  for  foreign  affairs  that,  if  it  shall  appear  that 
his  claim  to  be  a  citizen  of  the  United  States  is  valid,  and  that  he  has 
done  no  act  to  forfeit  his  rights  as  such,  it  will  be  claimed  and  insisted 
that  he  is  entitled  to  the  trial  by  civil  tribunal,  and  iu  the  ordinary 
forms  of  law  which  are  guaranteed  to  citizens  of  the  United  States  by 
the  article  of  the  treaty  of  1795  which  has  already  been  made  the  sub- 
ject of  correspondence  between  you  and  the  Spanish  Government." 

Mr. Fish, Sec.  of  State,  to  Mr.  Sickles,  Nov.  25,  1870.     MSS.  lust.,  Spain;  For. 
Rel.,  1871. 

"It  is  understood  to  be  the  usual  custom  of  the  courts  of  the  United 
States  and  the  several  States  near  the  border,  to  permit  the  gentlemen 
of  the  Canadian  bar  to  appear  as  counsel  for  British  subjects ;  but 
this  is  an  act  of  courtesy  and  comity,  not  an  admission  of  a  right,  and 
if  the  courts  of  Manitoba  do  not  extend  the  same  courtesy  to  the  bar 
of  the  United  States,  we  can  only  regret  their  decision,  but  cannot 
officially  complain  of  it." 

Mr.  Davis,  Actiug  Sec.  of  State,  to  Mr.  Austiu,  July  17,  187.3.    MSS.  Dom.  Let. 

When  there  ia  a  denial  of  justice  in  Canada  in  a  particular  case  of 
wrong  inflicted  in  Canada  on  citizens  of  the  United  States,  the  case  is 
one  for  diplomatic  intervention. 

Mr.  Fiish,  Sec.  of  State,  to  Sir  E.  Thornton,  Sept.  4, 1873.     MSS.  Notes,  Gr.  Brit. 

"It  may,  iu  general,  be  true  that  when  foreigners  take  up  their 
abode  in  a  country  they  must  expect  to  share  the  fortune  of  the  other 
irdiabitants,  and  cannot  expect  a  preference  over  them.  While,  how- 
ever, a  Government  may  construe  according  to  its  pleasure  its  obliga- 
tion to  protect  its  own  citizens  fioin  injury,  foreign  Governments  liave 

017 


>5s  230.]  CLAIMS.  [chap.  IX. 

a  right,  ami  it  is  their  d.ity,  to  judge  Miiether  their  citizens  have  re- 
ceived the  i)rotectioii  due  to  them  pursuant  to  public  law  and  treaties. 
It  may  bo  the  abstract  right  of  a  Goverumeut  to  exclude  foreigners 
entirely  from  its  territories.  This  right,  however,  has  rarely  been  ex- 
ercised in  modern  times.  '>Vheuever  it  is  waived,  this  step  imparts  to 
the  Government  to  whom  the  foreigners  may  owe  their  allegiance  the 
right  of  seeing  that  the  duty  of  the  other  Government  toward  them  is 
fullilled.  An  acknowledgment  of  this  right  is  not,  under  the  circum- 
stances, as  Mr.  Lafragua  seems  to  suppose,  tantamount  to  making 
unjust  and  invidious  discriminations  in  favor  of  foreigners  and  against 
citizens.  It  cannot  be  acknowledged,  as  Mr.  Lafragua  maintains,  that 
diplomatic  interference  in  such  cases  necessarily  annihilates  or  trenches 
upon  the  peculiar  functions  of  the  judiciary  of  a  country.  In  cases  of 
a  denial  of  justice  the  right  of  intervention  through  the  diplomatic 
channel  is  allowed,  and  justice  may  as  much  be  denied  when,  as  in 
this  case,  it  would  be  absurd  to  seek  it  by  judicial  process,  as  if  it  were 
denied  after  having  been  so  sought." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Foster,  Dec.   IC,  1873.    MSS.  In8t.,Mex. 

Unjust  discrimination  against  a  citizen  of  the  United  States  in  a  for- 
eign country  by  which  he  is  subjected  to  peculiarly  harsh  imprisonment 
and  other  injuries  forms  a  basis  of  a  claim  for  damages  agjainst  the  Gov- 
ernment of  such  foreign  state. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  White,  Jan.  7,  1874;  MSS.  Inst.,  Arg.  Rep. 
Supra,  $  189. 

"  I  duly  received  and.  have  taken  into  deliberate  consideration  your 
note  of  the  30th  ultimo  and  the  accompanying  documents.  It  presents 
a  claim  against  this  Government  for  the  alleged  murder  of  Mexican 
shepherds  on  an  estate  belonging  to  Don  Toribio  Lozano,  of  Is'euvo 
Leon,  Mexico,  which  estate  is  situated  in  Kueces,  Tex.,  and  for  dam- 
ages resulting  therefrom.  Though  I  have  been  much  struck  with  the 
moderation,  clearness,  and  fullness  of  your  statement,  I  have  not  been 
able  to  reach  your  conclusion  as  to  the  accountability  of  this  Govern- 
ment in  the  case  referred  to  or  in  others  of  a  similar  character.  I  am 
not  aware  that  any  Government  is  answerablein  pecuniary  damages  for 
the  murder  of  individuals  by  other  individuals  within  its  jurisdiction. 

"  Itisundoubtedlytheduty  of  a  Government  to  prosecute  such  oflenders 
according  to  law,  by  all  means  in  its  power.  If  this  duty  be  honestlj^ 
and  diligently  fulfilled  the  obligation  of  a  Government  in  such  a  case  is 
discharged.  Though  the  crime  by  which  the  Mexican  shepherds  are 
alleged  to  have  lost  their  lives  may  not  be  without  ])recedcnt,  it  seems 
obviously  unreasonable,  in  view  of  the  peculiar  condition  of  the  quarter 
where  it  was  perpetrated,  to  expectthatit  would  certainly  be  punished. 
This  seems  especially  true  when  it  is  taken  into  consideration  that,  un- 
der the  system  of  law  which  i)ervades  this  country,  no  person  can  be 
arrested  upon  suspicion  of  iiaviiig  committed  a  crime  except  upon  the 
G18 


CHAP.  IX.]  UNDUE    DISCRIMINATION    OF    JUSTICE.  f§  230. 

affidavit  of  a  credible  witness.  The  affidavit  referred  to  must  specify 
tlie  name  of  tlie  accused  party.  It  is  not  alleged  in  your  note  tliat  the 
course  adverted  to  was  pursued  in  this  case.  If  it  was  disregarded  vol- 
untarily or  through  necessity,  I  cannot  discern  where  the  responsibility 
of  this  Government  begins. 

'•Mexicans  in  Texas  and  Americans  in  Mexico  who  engage  in  business 
near  the  border  must  not  at  present,  or  perhaps  for  some  time  to  come, 
expect  either  Government  to  insure  them  against  all  the  risks  insepa- 
rable from  such  enterprises.  If  the  obligations  of  both  Governments 
under  treaties  and  the  public  law  are  conscientiously  fulfilled,  nothing 
more,  it  is  believed,  can  justly  be  looked  for." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Mariscal,  Feb.  19,  1875.    MSS.  Notes,  Mex.;  For. 
Eel.,  1875. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  8th 
instant,  alleging  that  two  Mexicans,  named  Mateo  Eoble  and  Gabriel 
Leyva,  respectively,  were,  some  time  since,  murdered  in  Texas.  In 
proof  of  this  charge,  your  note  is  accompanied  by  the  affidavits  of  cer- 
tain persons,  no  one  of  whom,  however,  claims  to  have  witnessed  the 
homicides.  They  all  speak  of  them  as  matters  of  public  notoriety. 
Even  the  names  of  the  supposed  culprits  are  not  mentioned.  It  seems 
clear  that  testimony  of  this  character  can  scarcely  be  made  the  basis  of 
any  speci6c  i^roceeding.  It  is  noticed,  too,  that  Leyva  is  said  to  have 
been  carried  to  the  bank  of  the  Rio  Grande  by  order  of  a  judge  in  Texas. 
This  statement,  likewise,  is  so  incredible  on  its  face  as  to  serve  as  its 
own  refutation.  It  may  be  affirmed  with  confidence  that  the  punishment 
of  banishment  is  not  provided  for  any  ofiense  which  may  be  committed 
in  Texas.  Without  such  a  provision,  no  judge  there  would  take  upon 
himself  the  infliction  of  such  a  penalty. 

"As  the  purpose  of  your  communication,  however,  is  that  the  atten- 
tion of  the  governor  of  Texas  may  be  invited  to  the  subject,  I  have  the 
honor  to  add  that  this  Department  has  addressed  a  letter  to  him  in  re- 
gard to  it." 

Same  to  same,  Mar.  18,  1875;  ibid, 

"  I  have  had  the  honor  to  receive  your  note  of  the  9th  instant  upon 
the  subject  of  the  alleged  murder  of  certain  Mexican  shepherds  in  the 
western  part  of  Texas.  You  allege  that  neglect  to  prosecute  the  of- 
fenders would  1)0  a  denial  of  that  justice  which  your  Government  has  a 
right  to  expect.  Your  allegation  is  entirely  concurred  in.  It  is  not 
l)erceived,  however,  where  the  neglect  imputed  began,  or  who  have  been 
guilty  of  it. 

"  A  large  part  of  the  State  of  Texas  is  but  very  sparsely  peopled  ;  and 
in  that  remote  and  extended  region  the  police  is  small  in  the  same  i)ro- 
])ortion  with  the  iK)i)ulation,  and  there,  as  in  all  regions  similarly  sit- 
uated, the  prevention,  detection,  and  puiiishinent  of  crime  is  dinicult,  if 
Jiot,  at  timcH,  impossible. 

Gil) 


§  230.]  CLAIMS.  [chap.  IX. 

''  The  character  of  a  border  popuhitiou  lu  such  country,  comprisiug 
but  too  often  lawless  persons  of  the  natioualties  of  each  of  the  cotermin- 
ous States,  and  refugees  from  the  laws  of  all  nationalities,  who  alter- 
nately assume  the  character  of  citizens  of  either  of  the  bordering  States, 
so  notoriously  adds  to  the  difficulty  of  maintaining  order  and  enforcing 
laws,  that  those  who  voluntarily  seek  residence  or  resort  thither  must 
be  presumed  to  be  aware  of  the  risks  thus  incurred. 

"  But  if,  as  is  alleged,  murders  have  been  committed,  the  same  rules 
of  evidence,  in  regard  to  crimes  charged  to  have  been  committed  in  that 
quarter  must  be  applied  as  would  be  applicable  to  their  commission  in 
the  more  densely  peopled  parts  of  the  State,  where,  it  may  be  presumed, 
the  law  may  be  executed  with  greater  facility  and  certainty. 

"  You  will  do  me  the  justice  to  believe  that  if  the  Mexican  shepherds 
were  murdered,  as  you  allege,  no  one  would  dei)lore  it  more  than  my- 
self, or  would  do  more  towards  having  the  guilty  parties  prosecuted  ac- 
cording to  law. 

"A  copy  of  your  note  on  this  subject  shall  be  communicated  to  the 
governor  of  Texas,  and  his  attention  shall  be  seriously  invited  to  the 
subject." 

Same  to  same,  Mar.  18,  1873 ;  ibid. 

*'  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
29th  ultimo,  relative  to  the  alleged  murder  of  certain  Mexican  shep- 
herds in  the  western  quarter  of  Texas.  It  assumes  that  in  the  note  of 
this  Department,  of  the  18th  ultimo,  the  right  of  your  Government  to 
consider  that  there  has  been  a  denial  of  justice  in  the  matter  is  ac- 
knowledged. This  assumption,  however,  is  believed  not  to  be  W£tr- 
ranted  by  the  phraseology  of  that  note.  Murder,  in  this  country,  can 
only  be  prosecuted  upon  information,  under  oath,  as  to  the  fact  and  as 
to  the  perpetrators.  This  Department  is  not  aware  that  there  has  been 
any  such  information  in  this  case.  Had  there  been,  and  had  the  proper 
authorities  then  refused  or  neglected  to  prosecute  the  offenders,  there 
would  have  been  ground  for  the  charge  that  there  had  been  a  denial  of 
justice.  At  present  there  has  been  no  such  denial,  as  there  has  been 
no  application  in  that  shape  only  in  which  it  can  legally  be  enter- 
tained." 

Same  to  same,  Apr.  C,  1875 ;  ihid. 

"  This  Government  has  not  claimed  that  citizens  of  the  United  States, 
who  place  themselves  in  a  foreign  jurisdiction,  carry  with  them  the 
particular  immunities  surrounding  trials  in  their  own  country,  nor  ha& 
it  insisted  that  peculiar  advantages  to  the  accused,  such  as  trial  by 
jury  and  the  habeas  corpus,  are  or  must  be  a  part  of  the  jurisprudence 
of  foreign  countries. 

"  But  we  have  claimed  that  by  International  law,  and  by  the  usages 
and  customs  of  civilized  nations,  a  trial  at  law  must  be  conducted  with- 
020 


CHAP.  J  X.J  UNDUE    DISCRIMINATION    OF    JUSTICE.  [§  230. 

out  unseemly  haste,  with  certain  safeguards  to  the  accused,  and  in 
deference  to  certain  recognized  rights,  in  order  to  mete  out  justice. 

"It  was  for  the  i^urpose  of  securing  to  our  citizens  such  well-known 
rights  and  privileges  that  article  seven  is  found  among  the  provisions 
of  our  treaty  of  1795.    ♦    *    * 

"  It  certainly  cannot  be  said  that  an  accused  person  has  all  the 
benefits  of  our  treaty,  where  the  defender  appointed  refused  to  read  the 
defense  provided,  when  the  accused  was  not  present  at  a  considerable 
portion  of  the  trial,  and  where  no  counsel  was  allowed  or  provided,  in 
the  proper  sense  of  the  term,  as  the  military  ofQcer  defending  him 
practically  admitted  his  culpability. 

"  Moreover,  you  cannot  fail  to  remember  that  the  prisoners  of  the 
Virginius  reached  Santiago  de  Cuba  in  the  evening  of  November  1; 
that  the  next  morning  at  9  o'clock  a  council  of  war  was  convened  on 
board  the  Tornado  ;  that  its  labors  were  completed  at  4  o'clock  in  the 
afternoon ;  that  the  consular  officer  who  demanded  of  General  Burriel 
permission  to  advise  with  his  countrymen  was  in  a  gross  manner  denied 
access  to  them ;  that  the  sentences  were  not  confirmed,  and  the  execu- 
tions were  hastened  for  fear  that  they  would  be  stopped  by  superior 
authority.    *     *     * 

"  In  fine,  if  trial  by  military  courts,  as  it  has  been  practiced  in  Cuba, 
is  to  be  continued,  it  is  difficult  to  see  how,  in  cases  in  which  justice 
and  moderation  are  most  required,  such  form  can  supply  the  guarantees 
to  which,  in  the  opinion  of  this  Government,  our  citizens  are  entitled, 
and  the  absence  of  which  will  and  must  cause  frequent  and  dangerous 
differences." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cusbing,  Dec.  27, 1875.     MSS.  Inst.,  Spain.     See 
infra,  ^  327. 

"Protocol  of  a  conference  held  at  Madrid,  on  the  12ih  of  January,  1877,  between  the  Hon. 
Caleb  Cashing,  minister  plenijioientiary  of  the  United  States  of  America,  and  his  excel- 
lency Seiior  Don  Fernando  Calderon  y  CoUantes,  minister  of  state  of  His  Majesty  the  King 
of  Spain. 

"The  respective  parties,  mutually  desiring  to  terminate  amicablj-  all  controversy 
as  to  the  effect  of  existing  treaties  in  certain  matters  of  judicial  procedure,  and  for  the 
reasons  set  forth  and  representations  exchanged  in  various  notes  and  previous  con- 
ferences, proceeded  to  make  declaration  on  both  sides  as  to  the  understanding  of  the 
two  Governments  in  the  premises,  and  respecting  the  true  application  of  said  treaties. 

"Seiior  Calderon  y  Collantes  declared  as  follows: 

"1.  No  citizen  of  the  United  States  residing  in  Spain,  her  adjacent  islands,  or  her 
ultramarine  possessions,  charged  with  acts  of  sedition,  treason,  or  conspiracy  against 
the  institutions,  the  public  security,  the  integrity  of  the  territorj',  or  against  the  su- 
l)remo  Government,  or  any  other  crime  ■whatsoever,  shall  be  subject  to  trial  by  any 
exceptional  tribunal,  but  exclusively  bj'  the  ordinary  jurisdiction,  except  in  the  case 
of  being  captured  with  arms  in  hand. 

"2.  Those  who,  not  coming  within  this  last  case,  may  bo  arrested  or  imj)risoned, 
shall  be  deemed  to  have  been  so  arrested  or  imprisoned  by  order  of  tho  civil  authority 
for  tlio  effects  of  llie  law  of  April  17,  1821,  even  lliongb  Ibc  arrest  or  iminisounieul 
shall  have  been  effected  by  armed  force. 

02 1 


^  230.]  CLAIMS.  [CIIAP.  IX. 

"3.  Those  who  may  bo  taken  with  arms  in  hand,  and  who  are  therefore  compre- 
hended in  the  excei)tiou  of  the  first  article,  shall  bo  tried  by  ordinary  conncil  of  war, 
in  conformity  with  the  second  article  of  the  hereinbefore-mentioned  law;  bnt  even  in 
this  ca*50  the  accused  bhall  enjoy  for  their  defense  the  guarantees  embodied  iu  the 
aforesaid  law  of  April  17,  1821. 

"4.  In  consequence  whereof,  as  well  in  the  cases  mentioned  in  the  third  paragraph 
as  in  those  of  the  second,  the  parties  accused  are  allowed  to  name  attorneys  and  ad- 
vocates, who  shall  have  access  to  them  at  suitable  times  ;  they  shall  be  furnished  in 
due  season  with  copy  of  the  accusation  and  a  list  of  witnesses  for  the  prosecution, 
which  latter  shall  be  examined  before  the  presumed  criminal,  his  attorney  and  advo- 
cate, in  conformity  with  the  provisions  of  articles  twenty  to  thirty-one  of  tho  said 
law;  they  shall  have  right  to  compel  tho  witnesses  of  whom  they  desiro  to  avail 
themselves  to  appear  and  give  testimony  or  to  do  it  by  means  of  depositions;  they 
shall  present  such  evidence  as  they  may  judge  proper;  and  they  shall  bo  permitted 
to  be  present  and  to  make  their  defense,  in  public  trial,  orally  or  in  writing,  by  them- 
selves or  by  means  of  their  counsel. 

"5.  The  sentence  pronounced  shall  bo  referred  to  the  audieucia  of  the  judicial  dis- 
trict, or  to  the  Captain-General,  according  as  tho  trial  may  have  taken  place  before 
the  ordinary  judge  or  before  the  council  of  war,  in  conformity  also  with  what  is  pro- 
scribed in  the  above-mentioned  law. 

"  Mr.  Cushing  declared  as  follows: 

"  1.  Tho  Constitution  of  tho  United  States  provides  that  the  trial  of  all  crimes  ex- 
cept in  cases  of  impeachment  shall  bo  by  jury,  and  such  trial  shall  be  held  in  the 
State  where  said  crimes  shall  have  been  committed,  or  when  not  committed  within 
any  State  tho  trial  will  proceed  iu  such  place  as  Congress  may  direct  (Art.  Ill,  $  2) ; 
that  no  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous  crime 
unless  on  presentment  of  a  grand  jury  except  in  cases  arising  in  the  land  and  naval 
forces  or  in  the  militia  when  in  actual  service  (Amendments  to  tho  Constitution,  Art. 
V) ;  and  that  in  all  criminal  prosecutions  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  State  and  district  wherein  the 
crime  shall  have  been  committed,  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation;  to  be  confronted  with  the  witnesses  against  him;  to  have  compulsory 
process  for  obtaining  witneuscs  iu  his  favor;  and  to  have  counsel  for  his  defense 
(Amendments  to  the  Constitution,  Art.  VI). 

"  2.  Tho  act  of  Congress  of  April  30,  1790,  chap.  9,  sec.  29,  re-enacted  in  the  Revised 
Statutes,  provides  that  every  person  accused  of  treason  shall  have  a  copy  of  the  in- 
dictment and  a  list  of  the  jury,  and  of  the  witnesses  to  be  produced  at  the  trial,  de- 
livered to  him  three  days  before  the  same,  and  iu  all  other  capital  cases  two  days  be- 
fore that  takes  place ;  that  in  all  such  cases  tho  accused  shall  be  allowed  to  make  his 
full  defense  by  counsel  learned  in  the  law,  who  shall  have  free  access  to  him  at  all 
seasonable  hours  ;  that  he  shall  be  allowed  in  his  defense  to  make  any  proof  which 
ho  can  produce  by  lawful  witnesses,  and  ho  shall  have  due  power  to  compel  his  wit- 
nesses to  appear  in  court. 

"  3.  All  these  provisions  of  the  Constitution  and  of  acts  of  Congress  are  of  constant 
and  permanent  force,  except  on  occasion  of  tho  temporary  suspension  of  the  writ  of 
habeas  corpus. 

"4.  Tho  provisions  herein  set  forth  apply  in  terms  to  all  ^lersous  accused  of  tho 
commission  of  treason  or  other  capital  crimes  in  the  United  States,  and  therefore,  as 
well  by  the  letter  of  tho  law  as  in  virtue  of  existing  treaties,  the  said  provisions  ex- 
tend to  and  comprehend  all  Spaniards  residing  or  being  in  tho  United  States. 

"  Seuor  Calderon  y  Collantes  then  declared  as  follows : 

"  In  view  of  tho  satisfactory  adjustment  of  this  question  iu  a  manner  so  proper  for 
tho  preservation  of  the  friendly  relations  between  the  respective  Governments,  and 
in  order  to  afford  to  the  Government  of  the  United  States  the  completest  security  of 

G33 


CHAP.  IX.]  UNDUE    DISCRIMIXATIOX    OF    JUSTICE.  [§  230. 

the  sincerity  and  good  faith  of  His  Majesty's  Government  in  the  premises,  command 
will  be  given  by  royal  order  for  the  strict  observance  of  the  terms  of  the  present 
protocol  in  all  the  dominions  of  Spain  and  specifically  in  the  Island  of  Cuba 
"  In  testimony  of  Tvluch  we  have  interchangeably  signed  this  protocol. 

"Caleb  Cushixg. 

"Ferxdo.  Calderox  y  Collaxtes. 

The  above  is  to  be  regarded  as  simply  an  opiuion  by  the  parties  aa 
to  the  state  of  theUiw  iu  this  relation  in  the  United  States  and  Spain. 
As  to  the  United  States  it  has  not  the  force  of  a  law. 

Supra,  ^  131. 

"  It  has,  from  the  very  foundation  of  this  Government,  been  its  aim 
that  its  citizens  abroad  should  be  assured  of  the  guarantees  of  law; 
that  accused  persons  should  be  apprised  of  the  specific  offense  with 
which  the}'  might  be  charged ;  that  they  should  be  confronted  with  the 
witnesses  against  them  ;  that  they  should  have  the  right  to  be  heard  in 
their  own  defense,  either  by  themselves  or  such  counsel  as  they  might 
choose  to  employ  to  represent  them;  in  short,  that  they  should  have  a 
fair  and  impartial  trial,  with  the  presumption  of  innocence  surrounding 
them  as  a  shield  at  all  stages  of  the  proceedings,  until  their  guilt  should 
be  established  by  competent  and  suflBcient  evidence." 

Mr.  Evarts,  Sec.  of  State,  to  Aristarchi  Bey,  Dec.  8, 1877.    MSS.  Notes,  Tnrkey. 

Conviction  and  punishment  of  a  citizen  of  the  United  States  in  a  for- 
eign country,  in  a  trial  conducted  with  palpable  injustice  and  in  violation 
of  settled  principles  of  law,  will  be  the  basis  of  a  claim  for  redress  from 
such  country  by  the  Government  of  the  United  States. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Langston,  Apr.  12,  1878.     MSS.  Inst.,  Hayti. 

See  same  to  same,  Dec.  23,  18T8;  Nov.  3,  1880  ;  Mr.  Davis,  Asst.  Sec.,  to  Mr. 

Langston,  Aug.  27,  1882. 
As  to  defense  of  res  adjudicaia,  see  supra,  $$  238,  329a. 

"  I  transmit  herewith  for  your  information  a  copy  of  a  joint  reso- 
lution pas.sed  during  the  late  session  of  the  United  States  Congress,  and 
approved  on  the  15th  ultimo,  reciting  certain  allegations  in  relation  to 
Edward  O'M.  Condon,  whose  case  had  heretofore  been  the  subject  of 
frequent  correspondence  with  your  legation,  and  requesting  the  Presi- 
dent to  cause  an  investigation  to  be  made  in  the  premises,  and,  if  deemed 
expedient,  to  take  such  action  as  may  secure  to  the  prisoner  an  oppor- 
tunity for  exoneration  or  a  speedy,  fair,  and  impartial  trial. 

"  It  is  not  desired,  pending  such  investigation,  that  you  should  take 
any  farther  official  action  in  behalf  of  Condon,  but  you  may  say  infor- 
mally to  the  Briti.sh  secretary  of  state  for  foreign  aflairs,  that  the  Congress 
of  the  United  States  has  ordered  a  careful  examination  of  all  the  circum- 
stances which  led  to  tlic  conviction  of  Condon,  and  that  if  the  result  of 
such  investigation  should  tend  to  exonerate  the  prisoner  from  the  crime 
of  which  he  has  been  convicted,  or  should  develop  facts  in  his  favor  not 
known  or  presented  at  his  former  trial,  the  exculpatory  i)roof  will  be 


§  230.]  CLAIMS.  [chap.  IX. 

laid  iu  due  time  before  Her  JNIajesty's  Governmeut,  iu  the  coutldeut  hope 
that  a  new  trial,  Nvith  adequate  means  of  defense,  will  be  accorded  as 
an  act  of  justice  and  equity." 

Mr.  Evarts,  Sec.  of  Stalo,  to  Mr.  Welsh,  July  1, 1878.    MSS.  Inst.,  Gr.  Brit..;  For. 
Rel.,  1878. 

"  The  Department's  instruction  No.  100,  of  the  1st  instant,  recited 
for  your  information  the  joint  resolution  of  Congress  of  the  15th  ultimo, 
in  relation  to  the  case  of  Edward  O'M.  Condon,  and  gave  to  you  certain 
directions  as  to  the  course  to  be  observed  toward  Her  Majesty's  Govern- 
ment with  respect  to  the  contemplated  investigation.  Subsequently,  on 
proceeding  to  carry  out  the  purpose  of  that  resolution  by  providing  for 
an  impartial  and  discreet  investigation  into  the  circumstances  attending 
the  conviction  of  the  prisoner  with  a  view  to  ascertaining  if  any  evidence 
is  offered  or  obtainable  which  might  justify  an  appeal  for  a  new  trial,  it 
was  deemed  advisable  to  instruct  you  to  defer  action  on  that  instruction, 
and  the  telegram  of  the  8th  instant  was  accordingly  sent  to  you. 

"  In  execution  of  the  request  contained  in  the  resolution,  the  De- 
partment, by  the  President's  desire,  has  requested  *  *  *  to  pro- 
ceed to  England  without  delay,  in  order  to  enter  promptly  upon  the  re- 
quired investigation,  and  to  omit  no  attention  to  the  inquiry  pointed  out 
in  the  joint  resolution  which  may  promise  beneficial  results  *  *  ♦ 
has  been  instructed,  however,  before  taking  any  steps  in  the  direction 
of  the  proposed  investigation,  to  report  to  you  iu  order  to  obtain  your 
needful  counsel  and  co-operation  in  the  delicate  mission  with  which  he 
is  charged.     *     *     * 

"If  the  result  of  ♦  *  *  's  investigation  shall  make  it  probable 
that  full  justice  failed  to  be  done  to  the  prisoner  on  his  conviction, 
and  if,  upon  a  candid  statement  of  the  proofs  now  accessible,  it  should 
be  reasonably  probable  that  the  prisoner's  innocence  of  the  crime  of 
which  he  was  convicted  could  be  shown,  you  will  be  put  in  possession  by 
*  *  *  of  all  the  facts.  Should  you  entertain  the  opinion  that  these 
facts  bear  the  import  which  I  have  suggested,  you  will  present  them  to 
the  proper  authorities  for  their  consideration.  This  Government  can- 
not doubt  of  the  disposition  of  Her  Majesty's  Government  to  meet  the 
case  presented  with  the  most  favorable  purj^oses  in  the  prisoner's  be- 
half that  the  facts  laid  before  them  will  warrant.  If,  however,  the 
result  of  the  investigation  should  satisfy  *  ♦  ♦  and  yourself  that 
there  is  no  fair  support  to  the  opinion  that  there  was  any  failure  of  jus- 
tice in  the  conviction,  and  that  no  new  facts  can  be  proved  that  would 
make  Condon's  innocence  appear,  the  good  offices  of  the  Government 
will  be  directed  to  a  renewed  appeal  to  the  clemency  of  the  British 
Government. 

"The  President  has  every  desire  that  the  investigation  shall  result 
to  the  enlargement  of  the  prisoner,  and  in  any  event  shall  satisfy  him 
and  his  friends  that  every  proper  step  has  been  taken  in  his  behalf  to 
(124 


CHAP.  IX.]  UNDUE    DISCRIMINATION    OF    JUSTICE,  [§  230. 

accomplish  the  purposes  of  the  joint  resohition  of  CoDgress.  It  is  par- 
ticularly advisable  that  nothiug  be  done  which  might  give  the  Govern- 
ment of  Her  Majesty-  even  colorable  grounds  for  regarding  the  action 
now,  taken  as  in  any  sense  an  interference  in  the  domestic  judicial  ad- 
ministration of  another  state,  the  sole  object  being  to  discover,  if  possi- 
ble, whether  auy  presumj)tion  of  iunocence  exists  in  favor  of  the  pris- 
oner, which,  if  he  were  a  British  subject,  and  the  evidence  in  his  behalf 
came  through  the  usual  channels  of  British  law,  might  reasonably 
operate  to  secure  him  the  relief  contemi)lated." 
Same  to  same,  July  21,  1678 ;  ihid. 

"Your  dispatches  No.  849,  of  the  9th  ultimo,  and  No.  850,  of  the  10th, 
have  been  read  with  attention.  The  first  of  these  relates  to  the  general 
question  of  extraordinarj^  taxes,  and  the  complaints  preferred  to  you 
by  American  residents  in  Mexico  against  their  exaction,  while  the  sec- 
ond refers  to  the  special  case  of  the  forced  loan  imposed  on  the  late 
Walter  Henry,  and  transmits  the  recent  correspondence  between  your- 
self and  ]\Ir.  Avila  on  that  subject.  Tour  note  to  the  minister  meets 
with  the  full  approval  of  this  Department.  It  is  observed  that  the 
ground  taken  by  Mr.  Avila  in  regard  to  the  recent  decision  of  the  su- 
preme court  of  Mexico  amply  justifies  the  conclusions  reached  here  in 
November  last,  and  made  the  occasion  of  an  instruction  to  you  of  the 
22d  of  that  month,  which  you  have  already  acknowledged.  The  guar- 
antees of  the  treaty  securing  to  our  citizens  in  Mexico  the  protection  of 
tbe  laws  of  that  country  cannot  but  be  regarded  as  illusory  and  unsub- 
stantial so  long  as  those  laws  are  ignored  through  the  acts  of  subordi- 
nate military  authorities,  and  the  judgments  of  the  highest  tribunals  of 
the  land  are  unheeded. 

"The  situation  is  one  which  in  the  highest  degree  warrants  and  de- 
mands diplomatic  intervention,  the  right  to  which  is  certainly  not  de- 
barred by  the  unsatisfactory  assurance  that  the  wrongs  of  our  citizens 
are  shared  in  common  with  those  of  natives. 

"  The  Department  concurs  in  your  belief  that  further  discussion  of 
the  question  of  forced  loans  must  be  fruitless,  unless  the  Mexican  Gov- 
ernment can  give  assurance  of  its  willingness  to  take  up  the  subject 
with  a  view  to  reaching  an  international  agreement  thereon." 

Mr,  F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Foster,  Jan,  15,  1871).     MSS. 

Inst.,  Mex. ;  For.  Kel.,  1879. 
As  to  inequality  of  taxation  on  aliens,  see  nupra,  ^  204. 

A  law  of  the  Argentine  Kepublic  which  provides  that  unless  the  heirs 
of  persons  dying  in  that  country  appear  and  make  claim  to  their  estate, 
Buch  estate  will  be  confiscated,  is  such  an  unjust  discrimination  against 
citizens  of  the  United  States  as  to  call  for  the  urgent  remonstrance  of 
the  Department  of  State. 

Mr.  EvartH,  S.-c.  of  Siat«,  to  ilr.  OHboni,  Soiit.  4,  1679.     MSS.  Inst.,  Arg.  Rop 

S.  Mis.  IGli— Vur>.  n 1"  C25 


§  230.]  CLAIMS.  [chap.  ix. 

''The  state  to  which  a  foreigner  belongs  may  interfere  for  his  pro- 
tection when  he  has  received  positive  maltreatment,  or  when  he  has 
been  denied  ordinary  justice  in  the  foreign  country,  and  the  state  of 
the  foreigner  may  insist  upon  immediate  reparation  in  the  former  case." 
Mr.  Evarts,  Sec.  of  State,  to  Mr.  Gooaloc,  Mar.  14,  1679.     MSS.  lust.,  Belgium. 

"  Referring  to  my  general  instruction  of  the  2Gth  ultimo  (No.  166), 
in  relation  to  the  case  of  Michael  P.  Boyton,  I  now  inclose  to  you  a 
copy  of  a  letter  of  the  30th  of  the  same  mouth  from  the  Hon.  Samuel  J. 
Randall,  in  behalf  of  J\Ir.  Joseph  B.  Walsh,  a  citizen  of  the  United 
States,  who,  it  appears,  was  arrested  on  the  3d  of  March  last,  uuder  the 
provisions  of  the  late  act  of  Parliament,  known  as  the  '  protection  act.' 
Mr.  Walsh  is  represented  as  being  imprisoned  in  Dublin,  and  it  is  prob- 
able that  Kilmainham  jail  is  the  place  of  confinement.  His  relatives  in 
this  country,  knowing  only  of  his  arrest  and  imprisonment,  are  unable 
to  aflbrd  the  Department  any  information  as  to  the  specific  charge,  if 
any,  upon  which  he  is  held  ;  and  it  seems  quite  likely  that  the  prisoner 
himself  is  also  in  ignorance  in  regard  to  the  particular  offense  for  which 
he  is  thus  subjected  to  summary  detention  and  confinement. 

"  Mr.  Walsh  has  been  a  citizen  of  the  United  States  since  1875.  His 
character  as  a  law-abiding  and  good  citizen  is  vouched  for  by  well  known 
and  respectable  citizens  of  Pennsylvania.  I  inclose  a  coi)y  of  his  cer- 
tificate of  naturalization. 

"  I  have  already  indicated  to  you  in  my  instruction  of  the  2Gth  of 
May,  the  entire  absence  of  any  disposition  on  the  part  of  this  Govern- 
ment to  interfere  with  the  administration  of  the  local  or  general  muni- 
cipal laws  of  Great  Britain.  The  laws  of  that  country,  and  especially 
those  that  relate  to  the  personal  liberty  and  security  of  the  citizen,  have 
always  been  so  much  iu  harmony  with  the  i)rinci{)les  of  jurisprudence 
cherished  by  Americans  as  a  birthright,  that  they  have  never  failed  to 
command  the  respect  of  the  Government  and  i)eople  of  the  United 
States.  But  whatever  the  necessity  may  be  in  the  estimation  of  Her 
Majesty's  Government  for  the  existence  and  enforcement  in  Ireland  of 
the  exceptional  legislative  measures  recently  enacted  in  respect  to  that 
country,  this  Government  cannot  view  with  unconcern  the  application 
of  the  summary  proceedings  attendant  upon  the  execution  of  these 
measures  to  naturalized  citizens  of  the  United  States  of  Irish  origin, 
whose  business  relations  may  render  necessary  their  presence  in  Ireland 
or  any  other  part  of  the  United  Kingdom,  or  whose  filial  instincts  and 
love  for  kindred  may  have  prompted  them  to  revisit  their  native  coun- 
try. 

"  If  American  citizens  while  within  British  jurisdiction  ofiend  against 
British  laws  this  Government  will  not  seek  to  shield  them  from  the 
legal  consequences  of  their  acts,  but  it  must  insist  upon  the  application 
to  their  cases  of  those  common  principles  of  criminal  jurisprudence 
which  in  the  United  States  secure  to  every  man  who  ofiends  against  its 
626 


CHAP.  IX.]  UNDUE    DISCRIMINATION    OF    JUSTICE.  [§  230. 

laws,  whether  he  be  an  American  citizen  or  a  foreign  subject,  those 
incidents  to  a  criminal  prosecution  which  afiorcl  the  best  safeguard  to 
personal  liberty  and  the  strongest  protection  against  oppression  under 
the  forms  of  law,  which  might  otherwise  be  practiced  through  excessive 
zeal. 

"  That  an  accused  i)erson  shall  immediately  upon  arrest  be  informed 
of  tbe  specific  crime  or  ofiense  upon  which  he  is  held,  and  that  he  shall 
be  afibrded  an  opportunity  for  a  speedy  trial  before  an  imi)artial  court 
and  jur}-,  are  essentials  to  every  criminal  prosecution,  necessary  alike 
to  the  protection  of  innocence  and  the  ascertainment  of  guilt.  You  will 
lose  no  time  in  making  the  necessary  inquiries  into  the  cause  of  Mr. 
Walsh's  arrest  and  detention,  in  which  it  is  probable  Mr.  Barrows,  the 
consul  at  Dublin,  may  be  able  to  aid  you.  And  if  you  shall  find  that 
the  circumstances  of  the  case,  in  the  light  of  this  and  previous  instruc- 
tions, are  such  as  to  call  for  interference  on  the  part  of  this  Government, 
you  will  make  such  temperate  but  earnest  representations  as  in  your 
judgment  will  conduce  to  his  speedy  trial,  or  in  case  there  is  no  specific 
charge  against  him,  his  prompt  release  from  imprisonment." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Lowell,  June  2,  18dl.     MSS.  Inst.,  Gr.  Brit. ; 
For.  Eel.,  1881.     See  supra,  ^  203. 

"  I  have  the  honor  to  refer  to  my  note  to  you  of  August  29,  last, 
relative  to  the  unfortunate  condition  of  aftairs  existing  on  both  sides  of 
the  border,  and  beg  to  invite  your  attention  particularly  to  the  circum- 
stances of  your  complaint  of  the  hanging  of  Jos6  Ordiua,  a  Mexican 
citizen,  by  certain  residents  of  Arizona,  for  horse  stealing,  having  re- 
cently received  a  letter  upon  that  subject  from  Mr.  John  J.  Gosper, 
acting  governor  of  that  Territory. 

•'  In  furtherance  of  the  Department's  request  to  ascertain  the  facts 
connected  with  the  hanging  of  the  individual  referred  to,  Mr.  Gosper 
called  in  person  upon  the  Mexican  consul  at  Tucson  to  obtain  from  him 
directly  everything  in  relation  to  the  deplorable  circumstance. 

"It  appears  that  the  only  information  the  consul  possessed  upon  the 
subject  was  derived,  first,  from  a  lady  who  wrote  him  at  the  time  of  the 
occurrence;  and  second,  from  Mr.  Paul,  the  sheriff  of  Pima  County,  a 
copy  of  whose  letter  to  the  Mexican  consul  at  Tucson  accompanies  your 
note  of  August  8,  1881. 

^'A  personal  interview  was  also  had  with  Mr.  Paul,  who  was  requested 
to  narrate  all  the  facts  as  far  as  he  was  familiar  with  them.  '  Ilis  state- 
ment to  me,  by  word  of  moutb,'  adds  ]\Ir.  Gosper,  '  was  substantially 
as  stated  in  his  communication  to  the  consul  of  Mexico,  with  the  addi- 
tional statement  that  the  citizens  of  the  Gila  whose  horses  had  been 
stolen  were  as  certain  that  the  two  men  whom  they  had  captured  were 
regular  liorse  thieves  as  though  they  had  been  tried  in  court  and  regu- 
larly proven  as  such  ;  that  they  did  not  intend  to  take  the  life  of  OrdlHa, 
only  intending  to  let  him  hang  long  enough  to  compel  him  to  give  infor- 

G27 


§  230.]  CLAIMS.  [chap.  IX. 

niatiou  of  the  \vhero;ib')uts  of  tlio  stolen  nniuiiils,  iiiid  by  mistake  let  him 
hang  too  lou^-.'  Mr.  Oosper  states,  also,  that  be  learued  from  other 
credible  sources  that  the  two  Mexicans  adverted  to  as  in  part  the  sub- 
ject of  the  Dei^artment's  correspondence  were,  without  doubt,  habitual 
thieves. 

"While  admitting  to  the  Mexican  consul  the  illegal  and  unfortunate 
circumstance  of  the  hanging  of  one  of  these  men  without  due  process  of 
law,  yet  it  appears  from  the  acting  governor's  communication  that  the 
consul  agreed  with  him  that  the  two  men  in  question  were  probably 
outlaws,  and  that  even  if  the  persons  connected  with  the  hanging  of  one 
of  them  were  to  be  arraigned  before  a  court  of  justice  it  was  doubtful  if 
there  could  be  found  a  witness  to  ai»pear  before  the  magistrate  to  testify 
against  them. 

''  The  consul  was  assured  by  Mr.  Gosper  that  in  the  event  of  further 
knowledge  upon  the  subject  coming  to  him  he  would  i)romptly  act  in 
the  interest  of  peace  and  the  enforcement  of  the  law. 

"In  this  connection  it  seems  not  inapproi)riate  to  include,  for  your  fur- 
ther information,  two  paragraphs  from  ]\Ir.  Gosper's  letter  to  me  upon 
the  general  subject  of  plunder  and  lawlessness  on  both  sides  of  the  bor- 
der, believing,  as  I  do,  that,  coming  from  such  a  source,  they  will  not 
only  serve  to  dispel  all  idea  that  the  ])revailing  condition  of  things  may 
be  directly  attributable  to  the  acts  of  American  citizens  alone,  but  will 
suflico  to  convince  you  of  the  actual  situation  of  affairs  in  that  quarter, 
in  which  your  own  citizens  are  not  infrequently  i)rominently  concerned. 

"I  quote  from  the  letter  of  Mr.  Gosper,  who  states  as  follows: 

"While  it  is  true  Americans  on  our  side  of  the  line  dividing  the  United  Slates  from 
Mexico  are  often  guilty  of  murder  and  theft  upon  citizens  of  Mexico,  it  is  equally  true 
that  Mexicans  on  their  side  of  said  line  are  equally  guilty  with  Americans  in  the  mat- 
ter of  murder  and  theft;  and  until  recently,  since  the  cow-boy  combination  along  the 
borders  for  plunder,  the  crimes  committed  against  the  citizens  of  both  the  Govern- 
ments of  the  United  States  and  Mexico  along  the  border  M'orc,  in  most  part,  committed 
by  citizens  of  Mexico. 

"While  the  local  and  general  civil  authorities  of  both  Governments  should  be  active 
and  earnest  in  enforcing  the  laws,  I  think  the  civil  authorities  of  the  Government  of 
Mexico  are  sometimes  perhaps  more  sensitive  over  crimes  committed  by  Americans 
than  circumstances  in  particular  cases  would  justifj'.  Mere  rumor  and  false  state- 
ments often,  for  a  time,  create  tineasiness  which  a  knowledge  of  the  facts  quickly 
dispels. 

"  In  conclusion,  1  beg  to  repeat  what  must  be  already  known  to  you, 
that  the  Department  has  uniformly  given  to  your  several  complaints 
in  relation  to  the  border  difficulties  every  possible  attention,  and  has 
Bought  upon  each  occasion  the  co-oi)eration  of  the  competent  officers 
of  this  Government  to  remedy,  as  far  as  may  lie  in  their  power,  the 
evils  complained  of.  I  shall  do  so  in  the  present  instance,  in  view  of 
the  statements  contained  in  Mr.  Gosper's  letter;  and  in  connection  with 
the  general  subject  of  our  border  troubles,  it  gives  loe  pleasure  to  in- 
close herewith  for  your  information  a  copy  of  a  letter  from  the  Secretary 
C28 


CHAP.  IX.]  UNDUE    DISCRIMINATION    OF   JUSTICE.  [§  230. 

of  War  of  the  1st  instaut,  from  which  it  appears  that  all  proper  assist- 
ance will  be  given  by  his  Department  to  effect  a  better  and  more  satis- 
factory condition  of  affairs  in  that  section. 

"I  can  confidently  assure  you  of  the  desire  of  the  general  Government 
to  suppress  all  unlawful  disturbances  and  maintain  a  proper  respect  for 
law  and  order  on  the  border,  and  that  it  will  willingly  pursue  such 
means  as  may  be  found  practicable  to  obtain  that  result." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Zaiuacona,  Nov.  10,  1S81.    MSS. Notes,  Mei.; 
For.  Rel.,  1882.    Ivfra,  §  24-1. 

"  I  have  to  acknowledge  your  No.  434,  of  the  30th  August  last,  in 
relation  to  the  arrest  of  Mr.  Henry  George. 

"  This  Department  was  first  informed  of  Mi".  George's  arrest  by  reports 
in  the  newspapers,  and  then  telegraphed  to  you.  Mr.  George  being  in 
Great  Britain,  it  was  supposed  he  would  communicate  to  you  in  writing 
the  facts  as  to  his  arrest  and  thus  afford  you  a  basis  for  proper  action. 
He  however  seems  not  to  have  written  to  you  on  the  subject. 

"  After  bis  release  he  had,  it  is  understood,  a  personal  interview  with 
you,  and  the  action  thereupon  promptly  taken  by  you  on  the  informa- 
tion you  possessed  is  justified  by  the  statements  herein  contained. 

"  His  letter  to  the  President,  which  at  once  appeared  in  the  news- 
papers and  was  referred  to  this  Department,  contained  the  first  detailed 
statement  of  the  facts  received  here.  As  I  understand  that  no  similar 
communication  has  been  made  to  you,  I  inclose  a  copy  of  the  letter. 

"Mr.  George  is  a  citizen  of  the  United  States  and  a  gentleman  well 
known  in  this  country.  He  states  that  in  October,  1881,  he  lauded  in 
Ireland,  and  since  then  he  has  traveled  in  Great  Britain,  always  con- 
ducting himself  in  a  lawful  manner.  On  the  8th  of  August  last,  ho 
started  from  Dublin  for  the  west  of  Ireland,  and  on  his  arrival  in  the 
town  of  Loughrea,  at  about  C  o'clock  in  the  evening,  he  was  seized  by 
the  constabulary,  carried  to  the  police  i^rison,  where,  in  spite  of  his 
declaration  that  he  was  a  citizen  of  the  United  States,  traveling  through 
th(;  country  without  criminal  intent  or  unlawlul  purpose,  ho  was  held  a 
close  prisoner  for  about  three  hours,  during  which  time  his  baggage 
and  person  were  searched  and  all  his  letters  and  pai)ers  minutely  exam- 
ined. Finally  a  magistrate  arrived,  who  was  informed  by  the  subin- 
si)ector  that  Mr.  George  hud  been  arrested  upon  telegraphic  information 
that  he  was  a  suspicious  stranger ;  but  Mr.  George's  request  to  be  in- 
formed of  the  source  of  the  information  and  the  ground  of  suspicion 
was  refused.  The  sul)insi»ector  further  stated  tliat  nothing  suspicious 
liad  been  found  upon  Mr.  George's  person  or  in  his  eflects.  He  was  there- 
upon discharged.  Mr.  George  immediately  protested  in  what  appears 
to  be  ]>rojK'r  terms  against  the  treatment  he  had  received,  stating  tliat 
he  should  have  been  given  reasonable  oi»poitunity  for  clearing  up  any 
Ku.spicion  which  miglit  have  been  entertained  of  him  before  being  ar- 
rested, im|»iisoned,  and  searclied. 

C29 


$  230.]  CLAIMS.  [CIIAP.  IX. 

"  Ou  the  followiug  day  ]Mi'.  George  left  Lougbrea  aud  proceeded  to 
Athcury,  a  town  but  a  lew  miles  distant  in  the  same  county  and  witbiu 
the  jurisdiction  of  the  same  inspector  and  magistrate.  There  he  re- 
mained one  night,  and  the  next  morning,  after  having  visited  the  an- 
tiquities of  the  place,  was  about  to  take  the  train  for  Gahvay,  when  he 
was  again  stopped  by  a  subins[)ectorof  consta'tulary  and  questioned  as 
to  his  name,  nationality,  business,  from  whence  he  had  come,  and 
wliither  he  was  going.  To  all  these  questions  he  gave  true  answers, 
showing  him  to  be  an  xVmerican  citizen  of  reputable  character  traveling 
upon  lawful  business.  Nevertheless,  he  was  not  permitted  to  take  tho 
train,  but  was  again  ])laced  under  arrest,  carried  to  the  i)olice  barracks, 
and  his  clothiug  and  baggage  again  searched  in  the  same  manner  as  at 
Loughrea,  and  this  notwithstanding  the  fact  that  his  arrest,  search,  aud 
discharge  at  Loughrea  were  known  to  the  constabulary  at  Athenry. 
Mr.  George,  who  in  the  whole  matter  appears  to  have  acted  with  dis- 
cretion and  within  his  rights,  demanded  to  be  i)romptly  taken  before  a 
magistrate,  but  was  detained  a  close  prisoner  until  the  arrival  in  tho 
evening  of  the  same  magistrate  before  whoui  he  was  examined  at 
Loughrea;  yet  even  then  he  was  not  discharged  until  nearly  midnight, 
and  after  again  being  subjected  to  a  long  examination. 

"The  President  is  i^ersuaded  that  the  acts  so  justly  complained  of 
must  have  been  committed  without  authority  by  subordinate  officials 
of  the  Government.  But  while  the  first  arrest  was  an  annoyance  to 
which  innocent  travelers  should  not  be  subjected,  and  while  the  search 
and  examination  were  not  justifiable,  and  seem  to  have  been  conducted 
in  a  manner  not  consonant  with  the  spirit  of  the  laws  both  of  Great 
Britain  and  the  United  States,  it  is  particularly  to  the  repetition  of  the 
indignity  that  the  President  wishes  your  attention  to  be  directed. 

"The  second  arrest  occurred  within  forty-eight  hours  after  the  first; 
it  was  made  within  the  same  jurisdiction  by  officers  conversant  with 
what  had  occurred  at  Loughrea,  who  again  searched  his  person  and 
effects,  and  again  forced  Mr.  George  to  undergo  an  examination,  and 
that  before  the  same  magistrate  who  had  interrogated  him  at  Loughrea. 

"  These  acts  indicate  an  intention  on  the  part  of  the  officials  to  sub- 
ject Mr.  George  to  unnecessary  j^ersonal  annoyance. 

"Nor  can  this  action  be  excused  by  the  fact  that  he  is  alleged  to  have 
visited  the  ruins  of  Athenry  in  com])any  with  the  curate  and  another 
gentleman,  or  that  he  was  seen  to  enter  shops  of  alleged  '  suspects.' 
The  examination  of  Mr.  George  at  Loughrea  had  presumably  shown  the 
object  of  his  presence  in  Ireland,  and  should  have  convinced  the  au- 
thorities without  an  additional  examination  that  his  visit  to  the  ruined 
abbey  was  one  of  curiosity,  and  that  he  entered  the  shops  with  the  in- 
nocent purpose  of  making  purchases. 

"  Mr.  George's  conduct  in  Athenry  appears  to  have  been  natural  to  a 
traveler  seeking  information  and  amusement,  and  such  as  could  not 
fairly  subject  him  to  suspicion.  While  citizens  of  the  United  States 
030 


CHAP.  IX.]  UNDUE    DISCKIMINATIOX    OF    JUSTICE.  [§  230. 

traveling  or  resident  abroad  are  subject  to  the  reasonable  laws  of  the 
country  in  which  they  may  be  sojourning,  it  is  nevertheless  their  right 
to  be  spared  such  indignity  and  mortification  as  the  conduct  of  the  offi- 
cers at  Loughrea  and  Athenry  seems  to  have  visited  upon  Mr.  George. 

"  This  Government  is  loath  to  believe  that  the  current  rumors  are 
true  that  the  behavior  of  the  officers  and  magistrate  was  i)rompted  by 
a  prejudice  said  to  exist  among  the  officials  in  Irelaud  against  citizens 
of  the  United  States. 

"  In  Great  Britain,  as  in  the  United  States,  it  has  been  a  govern- 
mental principle  that  the  right  of  the  individual  to  exemption  from  ar- 
rest or  search  without  good  reason,  and  without  the  observance  of  forms 
calculated  to  insure  that  right,  should  be  jealously  guarded,  and  when 
unfortunate  events  have  demanded  a  temporary  suspension  or  qualifi- 
cation of  the  right  great  care  has  been  exerted  to  avoid  injustice  or  un- 
necessary indignity. 

''  The  power  given  to  subordinate  officials  by  the  '  inevention-of  crime 
act'  is  so  great  and  the  rights  subjected  to  their  discretion  are  so  im- 
portant that  foreign  Governments  may  reasonably  require  that  so  far  as 
their  citizens,  present  in  Ireland  on  legitimate  and  proper  business,  are 
concerned,  the  individuals  selected  to  administer  that  act  should  be 
competent,  w  ell-informed,  and  unprejudiced.  And  should  it  appear  that 
these  officials  have  in  the  case  of  such  foreign  citizens  misused  the  pow- 
ers intrusted  to  them,  they  should  be  subjected  to  such  condemnatory 
action,  and  the  citizens  wronged  should  receive  such  amends  as  the 
facts  may  warrant. 

"  The  Presideut  regrets  to  observe  that,  so  far  as  he  has  the  facts  be- 
fore him,  the  officials  at  Loughrea  and  Athenry  seem  to  have  fallen  far 
short  of  treating  the  rights  of  an  innocent  traveler  with  that  respect 
which  he  cannot  doubt  Her  Majesty's  Government  exacts  of  subordi- 
nate officials. 

"It  is  not  necessary  now  to  comment  upon  the  law  under  color  of 
which  these  arrests  were  made. 

"As  you  have  already  addressed  a  note  to  Lord  Granville  on  this  sub- 
ject, a  reply  will  probably  soon  be  received  by  you.  It  is  trusted  that 
the  tenor  of  that  reply  may  prove  satisfactory  to  this  Government  and 
also  relieve  Mr.  George  from  any  reproach  the  arrests  are  calculated 
unjustly  to  cast  upon  him.  More  definite  instructions,  therefore,  than 
those  herein  contained  and  those  heretofore  received  by  you  need  not 
now  be  given." 

Mr.  Frelinghuysc-u,  Sec.  of  State,  to  Mr.  Lowell,  Oct.  3,  1882.     MSS.  Inst.,  Gr. 
Brit.  ;  For.  Re).,  1882.     See  infra,  $  244. 

"  I  have  to  call  your  attention  to  the  question  of  the  release  of  the 
estates  in  Cuba  belonging  to  citizens  of  the  United  States,  which  have 
been  heretofore  embargoed  or  confiscated,  and  the  release  or  return  of 
which  has  been  directed  by  the  Government  of  Spain. 

631 


^^  230.]  CLAIMS.  [chap.  IX. 

"  The  coiTospoiKleiice  on  this  subject  in  your  legation,  extending-  over 
more  than  ten  j-ears,  will  give  you  full  information  as  to  the  details  of 
the  matter  and  as  to  the  position  of  the  two  Governments.  It  is  not 
necessary,  therefore,  now  to  repeat  the  history  of  the  occurrences  in 
Cuba  during  the  insurrection  which  led  to  the  unusual  and  extreme 
action  on  the  part  of  the  Government  of  Spain  of  embargoing  the  es- 
tates of  many  residents  of  that  island  and  of  confiscating  the  estates  of 
others,  or  of  the  subsequent  negotiations.  It  is  suftlcient  to  say  that 
when  the  orders  touched  the  rights  of  American  citizens,  this  Govern- 
ment promptly  protested,  and  has  never  at  any  time  recognized  the  le- 
gality of  this  action  of  the  Spanish  Government. 

"  In  1S71  a  commission  was  appointed  by  agreement  between  the  for- 
eign departments  of  the  two  Governments,  which  was  to  settle  claims 
of  the  citizens  of  the  United  St;ites  against  the  Government  of  Spain 
for  wrongs  and  injuries  committed  against  their  persons  and  property 
by  the  authorities  of  Si)ain  in  the  Island  of  Cuba  since  the  commence- 
ment of  the  insurrection.  That  commission  soon  assembled  in  Wash- 
ington and  claims  were  presented  to  it. 

"  For  the  purjiose  of  the  present  instruction  it  is  only  necessary  to 
notice  the  claims  based  upon  an  embargo  or  confiscation.  These  case? 
])resent  three  items  of  claims  : 

"1.  For  the  release  of  the  estates  held  by  the  Spanish  Government. 

"  2.  For  the  return  of  the  rents  and  profits  actually  received  by  Spain 
during  the  detention  of  the  proi)erty  and  admitted  to  be  in  the  hands 
of  that  Government. 

"  3.  Damages  for  the  detention  of  the  property. 

"  In  m.iny  instances,  the  statement  of  the  case  presented  by  the  claim- 
ants through  this  Government  to  the  commission  contained  a  demand 
for  indemnity  on  all  three  of  these  grounds,  and  Admiral  Polo,  then 
minister  of  Spain  in  Washington,  contended  that  the  entire  question 
raised  by  the  embargo  was  within  the  jurisdiction  of  the  commission, 
to  be  finallj'  decided  by  that  body.  '  To  this  Mr.  Fish  did  not  assent, 
and  said  in  his  note  to  Admiral  Polo,  of  May  22,  1872  : 

"I  beg  to  poiut  out  to  you  tliat  the  claims  before  the  corumiesiou  are  for  compeiisa- 
tiou  for  past  iujuries,  and  that  the  applications  for  the  release  of  the  estates  are  prop- 
eilj'  subjects  for  diplomatic  intervention. 

"In  another  note  to  the  Spanish  minister,  dated  June  21,  1872,  and 
referring  to  the  case  of  Mrs.  Farres  de  Mora,  Mr.  Fish  said : 

"It  is  the  province  of  the  commission  to  hear  evidence  on  the  claims  of  Mrs.  de 
Mora  for  past  injuries  resulting  from  acts  of  the  aiithorities  in  Cuba,  and  to  award 
her  pecuniary  compensation  if  they  shall  find  that  she  has  suflcrcd  loss  from  that 
cause.  The  property  which  she  now  asks  to  have  released  is  held  under  a  summary 
order  of  the  Government.  An  order  of  the  Government  can  at  once  release  it,  and 
as  no  pecuniary  claim  can  be  preferred  by  the  Government  of  Spain  against  her  be- 
fore the  commission  of  arbitration,  it  is  difficult  to  perceive  why  the  release  of  her 
property  should  be  made  to  depend  on  the  final  action  of  the  commission. 

G32 


CHAl'.  IX.]  UNDUE    DISCRlMIXATIO^    OF    JUSTICE.  [\N  230. 

"The  position  so  takeubyMr.  Fish  lias  been  ooiisistciitly  maintained 
by  the  United  States,  and  while  at  first  opposed  by  Spain,  its  validity 
was  soon  conceded. 

"In  1873  (July  12)  the  Government  of  Spain  published  a  decree  ad- 
mitting the  illegality  of  the  embargoes  and  confiscation  and  the  justice 
of  the  position  of  the  United  States.  In  the  preamble  to  this  decree  it 
is  said : 

"  There  canuot  be  found  in  interuatioual  law  any  precept  or  principle  .authorizing 
this  class  of  seizures,  which  hear  upon  their  face  the  stamp  of  confiscation  ;  neither 
under  any  sound  judicial  theory,  is  it  admissible  to  proceed  in  such  manner,  nor  can 
the  exceptional  state  of  war  authorize  under  any  pretext  the  adoption  of  preventive 
measures  of  such  transcendent  importance,  and  whose  results,  on  the  other  hand,  will 
inevitably  be  diametrically  opposed  to  the  purpose  which  inspired  it. 

"  The  decree  directed  the  release  of  all  estates  embargoed  by  execu- 
tive order  in  consequence  of  the  decree  of  A^ml  20,  18G9,  and  the  prin- 
ciples there  set  forth  have  been  recognized  repeatedly  since  that  date 
through  the  action  of  the  Spanish  Government. 

"  The  Government  of  the  United  States,  in  addition  to  the  presenta- 
tion of  the  general  question  of  the  release  of  the  estates,  has  not  failed 
to  continually  press  upon  the  attention  of  Spain  the  individual  cases 
which  have  from  time  to  time  come  to  its  notice.  Pursuant  to  our  rep- 
resentations the  minister  of  the  colonies,  on  the  7th  November,  1873, 
telegraphed  to  the  governor-general  at  Havana : 

"  I  salute  your  excellency,  and  reiterate  compliance  with  the  telegram  of  the  15th 
September,  relating  to  the  restoration,  in  obedience  to  treaties  in  force,  of  the  prop- 
erty of  North  American  foreigners ;  said  restorations  before  the  30th  November,  in 
order  to  avoid  intei-natioual  conflicts.  The  names  of  the  citizens  whose  estates  have 
to  be  restored  in  conformity  to  the  decree  of  the  r2th  July  are — 

and  here  follows  a  list  of  some  twenty-five  names,  among  them  those  of 
individuals  then,  and  some  of  them  untilJanuary  1,  1883,  claimants  be- 
fore the  commission.  Some  of  the  estates  have  been  released,  but  as  to 
others  the  distinct  directions  contained  in  the  decree  and  the  telegram 
were  not  complied  with. 

"  It  is  unnecessary  to  rehearse  the  long  discussion  which  followed, 
and  it  is  enough  to  say  that  the  position  of  this  Government  has  not 
changed,  and  no  eftbrt  has  been  spared  to  secure  the  final  and  amicable 
adjustment  wliich  would  hav^e  resulted  from  an  enforcement  of  the  de- 
cree of  1873  in  the  spirit  in  which  it  was  made.  Further,  it  may  be  ob- 
served, in  order  to  show  the  consistent  course  of  negotiation,  that  on 
February  9,  1870,  orders  were  repeated  by  the  Government  at  JMadrid 
to  restore  the  properly  of  four  American  citizens,  claimants  before  the 
commission,  and  at  still  later  dates  other  similar  orders  were  issued, 
and  as  late  as  1879  the  estates  of  de  Kojas  were  restored  to  hiin  pursu- 
ant to  the  continued  representations  of  Mr.  Ih'arts,  de  Kojas  being  at 
that  time  a  claimant  before  the  commission. 

633 


§  230.]  CLAIMS.  [chap.  IX. 

"  The  letnni  of  tlie  rovemies  or  iJiocceds  orembaigoinl  i)roi)c'i ty,  whoii 
actually  colk't-trd  by  Si)ain,  lias  always  born  regarded  by  both  Gov- 
ommeuts  as  au  incident  to  the  release  of  tiie  estates,  leaving;  to  the 
coinniission  only  jurisdiction  over  the  amount  of  dania;^!^  caused  by  the 
embargo  or  contiscation.  On  this  giound  vSpain  has  j)aid  to  the  claim- 
ants various  sums  of  money. 

"  At  no  time  is  it  found  that  the  Spanish  Government  seriously  con- 
tended for  or  that  the  United  States  admitted  any  judicial  i)0\ver  in 
the  commission  to  decide  upon  the  original  question  of  embargo  and 
contiscation  or  restoration.  The  commissionitself  repeatedly  held  that 
it  had  no  power  to  decree  the  restoration  of  property,  or  of  the  proceeds 
of  property,  or  to  enforce  any  opinion  it  might  give  in  regard  thereto. 
And  such  denial  of  jurisdiction,  even  though  cases  before  the  commis- 
sion were  discussed  therefor,  in  nowise  prejudice<l  the  claimant's  right 
to  the  executive  redress  which  the  commission  could  not  give. 

"  Neither  could  the  question  of  citizenship,  as  interpreted  by  the  com- 
mission, aflect  the  rights  of  American  citizens  to  executive  release  from 
embargo  ibr  all  jiurposes  for  the  release  of  their  i)roperty  and  the  re- 
turn of  the  proceeds.  The  citizenship  of  the  claimants  was  admitted  in 
the  several  supreme  decrees  ordering  restoration,  and  on  such  purely 
executive  giound  our  right  to  ask  the  execution  of  those  decrees  rests. 
As  the  commission  had  no  power  to  weaken  them,  and  still  less  set  them 
aside  by  judgments  contrary  thereto,  its  want  of  jurisdiction  as  to  such 
decrees  was  absolute,  although  they  might  be  properly  before  it  as  evi- 
dence in  cases  where  damages  were  claimed  bj^  reason  of  their  non-exe- 
cution. 

"It  is  not  necessary  for  me  to  remind  you  that  while  this  Government 
has  for  many  years  urged  diplomatically  the  release  of  the  estates  and 
the  return  of  the  collected  revenues,  it  has  at  the  same  time  demanded 
awards  before  the  commission,  as  was  observed  in  Admiral  Polo's  note 
to  ]\[r.  Fish  of  May  1*8,  1S7l'.  Most  of  the  petitions  before  that  body  em- 
braced, besides  the  claim  for  damages,  a  claim  for  the  release  of  the  es- 
tates and  return  of  the  proceeds  collected,  or  suitable  compensation  in 
lieu  thereof,  but  the  fact  that  such  claim  was  included  in  the  petition  to 
the  commissioners  was  not  regarded  by  either  Government  as  a  bar  to 
diplomatic  negotiation.  The  understanding  of  the  two  Governments 
on  this  point  is  clearly  shown  by  the  action  of  Spain  in  i)ublis])ing  the 
decree  of  1873,  and  the  subsequent  orders,  and  in  carrying  out  their 
provisions  in  various  instances.  In  1874  the  estates  of  Joaquin  Angar- 
icii  were  released,  and  a  large  sum  of  money  was  returned  to  him. 
Moses  Taylor  &  Co.  received  their  estates  and  nearly  8100,000  of  col- 
lected revenue,  and  the  embargoed  estates  of  de  Eojas  were  restored  in 
1879.  All  of  the  persons  thus  relieved  and  others  whom  it  is  unneces- 
sary to  mention  had  claims  before  the  commission.  Of  course,  after  the 
return  of  the  estates  and  proceeds,  only  that  part  of  the  claims  relating 
634 


CHAP.  IX.]  UNDUE    DISCRIMINATION    OF    JUSTICE.  [§,  230. 

to  damages  for  detentiou  remained  before  tbat  body,  and  Augarica, 
Domingues,  and  Poey  received  an  award  on  that  item  of  tbeir  claims. 
In  the  case  of  Delgado  the  estates  were  returned  by  the  Government 
of  Spain,  and  by  an  oversight  an  award  was  also  made  by  the  commis- 
sion in  his  favor.  The  cUiimant  therefor  was  allowed  to  elect  from  the 
two  remedies  granted. 

*'  A  review  of  the  correspondence,  therefore,  shows  that  this  Govern- 
ment has  maintained,  and  Spain  has  admitted,  that  the  claims  for  the 
release  of  the  embargoed  ])roperty  and  proceeds  were  subjects  for  dip- 
lomatic discussion,  and  not  properly  within  the  jurisdiction  of  the  com- 
mission ;  that  the  decree  of  July  12,  1873,  and  the  orders  subsequent 
thereto,  provided  for  the  unconditional  release  of  the  property  seized; 
that  the  restitution  of  the  property  involves  the  restitution  of  the  pro- 
ceeds collected  by  Spain;  that  the  commission  was  established  to 
assess  damages,  and  not  to  enforce  restitution  of  the  estates  and  pro- 
ceeds. 

"  This  brief  allusion  to  the  long-continued  correspondence  between 
the  two  Governments  on  this  question  is  not  made  as  a  statement  of 
any  new  i^riuciple,  but  to  show  that  the  course  of  this  Government  and 
Spain,  in  relation  to  this  class  of  claims,  has  been  harmonious  and  con- 
sistent. 

"  Eeference  has  been  made  to  the  decisions  of  the  commission  to  the 
effect  that  it  had  no  jurisdiction  as  to  the  restoration  of  the  property 
or  proceeds  thereof  seized  by  the  Cuban  authorities,  and  also  to  the 
fact  that  while  a  number  of  the  persons  whose  names  were  embraced 
in  the  several  decrees  of  restoration  were  claimants  before  the  commis- 
sion, their  appearance  before  that  tribunal  has  in  nowise  affected  their 
right  to  the  restitution  of  their  jiroperty  and  its  proceeds.  Now  that 
the  commission  has  completed  its  labors  and  its  results  are  fully  known, 
there  would  seem  to  be  no  further  occasion  for  delay  on  the  part  of  His 
Majesty's  Government  in  complying  with  the  repeated  and  urgent  re- 
quest of  the  Government  of  the  United  States  for  the  complete  resto- 
ration of  the  estates  of  its  citizens,  in  accordance  with  the  various  de- 
crees of  the  Spanish  Government. 

"  While  this  Government  is  not  disposed  to  press  claims  for  the  value 
of  slaves  seized  by  the  Cuban  authorities,  it  recognizes  the  injustice  of 
permitting  those  authorities  to  enjoy  the  fruits  of  the  seizure  from  the 
claimants,  and  the  propriety  of  a  voluntary  com])ensation  being  made 
therefor.  The  question  is  one  to  be  considered  in  the  cases  as  they 
arise,  and  as  to  which  further  instructions  will  be  sent  you  should  there 
be  occasion.  One  of  the  claimants  has  offered  to  surrender  his  claim 
lor  slaves  jirovided  the  authorities  stipulate  to  emanci[)ate  them,  an 
offer  wliich  seems  to  be  just  and  worthy  of  careful  consideration. 

"I  have,  therefore,  to  instruet  you  to  bring  (he  subject,  with  as  little 
delay  as  itosslhlc,  to  the  atlention  of  the  supicme  Govrinment  at  Mad- 

C35 


i  230.]  CLAIMS.  [chap.  IX. 

lid,  and  to  i)iesent  an  urgont  icquost for  the  enforcement  of  the  decrees 
of  release  in  all  cases  where  the  estates  or  their  proceeds  are  still  with- 
held l>,v  the  oflicials  ill  Cuba,  notwithstanding:  the  express  and  reiter- 
ated directions  of  the  home  Government  to  rctnrn  the  propertj' to  its 
rightliil  owners.  After  so  many  years  of  dii)l()matic  correspondence  and 
repeated  ])ostponemeut  iu  a  matter  wherein  the  rights  of  American 
claimants  have  been  so  comi)letely  reco^^iii/ed  by  the  solemn  decrees  of 
the  Spanish  (rovernmcnt,  the  President  ieels  that  he  will  not  be  dis- 
appointed in  the  expectation  which  he  entertained  that  His  Majesty's 
Government  will  give  the  subject  its  earnest  and  i)rompt  attention,  with 
a  view  to  an  e.iily  and  complete  compliance  with  the  long  nnexecnted 
decrees. 

"The  records  of  llie  legation  contain  detailed  information  as  to  the 
claimants  still  entitled  to  the  benefits  of  the  decrees  alluded  to.  and  yon 
will  be  furnished  with  such  additional  information  in  the  possession  of 
this  Department  as  will  enable  you  to  submit  to  the  minister  of  foreign 
affairs  an  accurate  statement  of  the  property  still  claimed  to  be  with 
held  by  the  Cuban  authorities. 

Mr.  Frelingliuyseu,   Sec.  of  State,   to  Mr.   Foster,  May  3,   1883.      MSS.   lust., 
Spaiu;  For.  Rel.,  1883.     See  infra,  $  244. 

"  Your  dispatch  Xo.  233,  of  the  19th  ultimo,  in  relation  to  the  arrest 
and  imprisonment  of  Dr.  Maurice  Pflauni,  a  citizen  of  the  United  States. 
at  Axar,  in  Syria,  has  been  received,  and  the  subject,  in  connection 
with  the  inclosures  giving  full  details  of  the  occurrence,  carefully  ex- 
amined. The  affair,  of  which  Dr.  Pflaam  so  justly  complains,  ai>pears 
to  be  frankly  and  impartially  stated  by  that  gentleman  in  his  allidavit 
of  the  2Gth  of  May,  sworn  to  before  W.  E.  Stevens,  esq.,  the  United 
States  consul  at  Smyrna,  a  copy  of  which  accompanies  Mr.  Stevens' 
dispatch  to  Consul-General  Heap,  of  the  11th  of  June,  and,  resting  on 
this  statement  alone,  the  facts  present  a  case  of  great  hard.ship  and  of 
unusual  and  unwarranted  severity  on  the  part  of  the  Turkish  authori- 
ties. But  the  matter  does  not  rest  alone  on  this  unsupported  statement. 
There  is  no  attempt  at  denial  of  the  material  facts  on  the  part  of  the 
local  authorities  at  Axar,  and  the  effort  made  by  the  local  governor  to 
justify  these  acts  of  annoyance  and  cruelty,  as  unnecessary  as  they 
were  unwarranted,  is  but  an  aggravation  of  the  outrage. 

''Your  promptness  in  instituting  an  inquiry  in  regard  to  the  matter 
is  most  commendable,  and  your  earnest  and  energetic  demand  for  the 
dismissal  of  the  governor  of  Axar  and  the  payment  to  you  of  £2,000, 
Turkish  money,  for  the  use  of  Dr.  Pflaum  and  as  indemnity  for  his 
injuries,  meets  with  the  approval  of  the  Department. 

"You  will,  therefore,  press  that  demand  in  the  name  of  this  Govern- 
ment, and  urge  its  early  and  equitable  adjustment." 

Mr.  Frclinghuysen,  Sec.  of  State,  to  Mr,  Wallace,  July  27,  1883.     MSS.  Inst., 
Turkey  ;  For.  T?ol.,  ISer*.. 

C3G 


CHAP.  IX.]  UNDUE    DISCRIillNATlOX    OF    JUSTICE.  [§  230. 

Undue  and  needless  delay  in  tbe  trial  of  a  citizen  abroad  is  a  ground 
lor  international  intervention. 

Mr.  Frelingliuyseu,  Sec.  of  State,  to  Mr.  Morgan,  Mar.  5,  1884.     MSS.  Inst., 
Mes. 

"It  is  clear  that  if  Mr.  Van  Bokkelen  were  a  Haytian  citizen,  a  sim- 
ple assignment  and  proceedings  in  bankrui)tcy  would  suffice  to  release 
bim  ;  he  being  an  alien,  however,  and  so  prohibited  from  holding  real 
estate,  Mr.  Van  Bokkelen  cannot  make  the  required  assignment. 

"  Xow,  the  Haytian  law  applicable  to  this  case  cannot  require  a  man 
to  do  a  specific  thing  and  prohibit  him  the  means  of  doing  so.  Hence, 
as  Mr.  Van  Bokkelen  sutlers  because  he  is  an  alien,  the  treaty  between 
the  United  States  and  Hayti  is  clearly  violated  in  his  person." 

Mr.  Frelingliuyspn,  Sec.  of  State,  to  Mr.  Langstoii,  Feb.  2,  1885.     MSS.  lust., 
Hayti. 

"I  have  to  acknowledge  the  receipt  of  Mr.  Heap's  No.  451,  of  Novem- 
ber 1,  1884.  It  relates  to  the  claim  of  Serkis  Kurkdjian,  an  Ottoman 
subject,  against  the  Eev.  George  C.  Knapp,  an  American  citizen,  for 
the  recovery  of  a  dwelling-house  in  Bitlis,  Armenia,  which  the  latter 
purchased  at  a  Government  sale  from  an  insolvent  debtor's  estate.  Mr. 
Heap's  dispatch  presents  the  case  fully,  showing  the  measures  taken  by 
Mr.  Knapp  to  retain  possession  of  his  property,  the  efforts  of  the  Otto- 
man subject  to  desi)oil  him  of  his  rights,  and  the  assistance  rendered  by 
yourlegationinbehalf  of  thei)urchaser.  For  convenience  I  shall  briefly 
recapitulate  the  main  features  of  the  complaint  before  proceeding  to 
give  the  Department's  conclusions  respecting  it. 

"In  1859  Mr.  Knapp  bought  the  property,  which  was  offered  for  sale 
by  the  Government  authorities  at  Bit  lis.  As  at  that  time  foreigners 
were  forbidden  to  hold  real  estate  in  Turkej',  he  complied  with  all  the 
requirements  of  the  law  and  obtained  a  full  and  complete  title  in  the 
name  of  an  Ottoman  subject,  father  of  the  present  complainant  and 
former  owner  of  the  premises.  In  1877  a  law  was  enacted  allowing 
foreigners  to  possess  real  estate.  Thereupon  Mr.  Knapp  had  the  title- 
deeds  made  out  in  his  own  name  and  delivered  to  him.  In  18CC,  how- 
ever, Serkis  Kurkdjian  sought  to  divest  Mr.  Knapp  of  his  rights,  and 
instituted  i)roceediugs  to  recover  possession  of  the  property.  The  case 
was  successi%'ely  called  up  in  three  different  courts.  In  each  the  decis- 
ion was  adverse  to  the  Ottoman  subject  and  confirined  Mr.  Knaj)[)'s  title. 
The  last  contest  was  in  the  ecclesiastical  court,  the  highest  tribunal  in 
matters  of  real  estate  in  Turkey,  and  from  whose  decision  there  is  no 
ajipeal.  Xotwitlistaiidiiig  all  this,  the  complainant,  about  two  years 
ago,  succeeded  in  obtaining  from  tlie  president  of  the  court  of  first  in- 
stance at  Bitlis  a  decision  declaring  the  sale  illegal,  and  sentencing  Mr. 
Knajjp  to  restore  the  ])ro])crty  and  i)ay  to  Serkis  Kurkjdian  a  consider 
able  sum  for  rent,  damages,  and  interest. 

037 


§  230.]  CLAIMS.  [chap,  ix 

"It  appears  that  'Mr.  Heap's  efforts  with  the  Sublime  Porte  in  behalf  of 
Mr.  Kiiapp  were  without  avail,  for  in  a  note  to  your  legation  of  Novem- 
ber 18,  1884,  the  minister  for  foreij^^n  affairs  conlirms  the  order  of  the 
president  of  the  court  at  Bitlis  and  recjuosts  Mr.  Ileap  to  have  its  order 
obeyed.  Mr.  lleap  in  his  note  to  that  ministry,  in  reply  of  ISTovomber 
I'0, 1884,  protests  against  this  action  and  submits  the  matter  for  the  De- 
partment's consideration.  J  have  accordingly  given  Mr.  Heap's  dispatch 
careful  attention.  Mr.  Knap])  should  continue  the  contest  in  the  Turk- 
ish courts  to  maintain  his  right  to  the  property ;  otherwise  he  will  be 
compelled,  under  the  decision  of  the  court  at  Litlis  and  the  order  of  the 
minister  of  foreign  affairs,  to  evacuate  the  i)remises  and  deliver  them 
up.  Still,  if  he  thinks  best  to  do  this,  Mr.  Knapp  has  his  remedy  against 
the  Government  of  Turkey  for  the  amount  of  the  i)urchase-money  and 
for  any  expenses  he  may  have  necessarily  incurred  in  defending  bis 
rights. 

"The  court  holds  that  the  sale,  in  1859,  to  Mr.  Knapp  by  the  authori- 
ties of  Bitlis  was  illegal,  and  the  minister  for  foreign  affairs  confirms  this 
view  by  his  note  of  November  18,  above  mentioned.  If  the  Ottoman 
Government  is  willing  to  abide  by  such  a  decision  it  is  not  seen  why  Mr. 
Knapp  should  complain,  insomuch  as  that  Government  is  thereby  com- 
pelled of  necessity  to  make  his  advances  and  necessary  expenses  under 
the  sale,  good.  That  Government,  too,  in  supporting  the  decision  of  the 
court  at  Bitlis  virtually  admits  its  liability  to  Mr.  Knapp,  and  is  conse- 
quently estopped  from  setting  any  defense  as  against  his  just  demands 
unless  there  shall  be  found  some  condition  in  the  sale  of  the  property 
which  shall  relieve  i  t  of  such  responsibility.  Under  these  circumstances 
Mr.  Knajip  should  vacate  the  premises  as  desired  by  the  minister  for 
foreign  affairs  and  immediatelj'  present  his  claim  to  the  Government  of 
Turkey  for  the  purchase-money  delivered  to  that  Government,  and  also 
for  any  sums  necessarily  expended  in  the  prosecution  of  his  rights.  If 
the  property  shall  have  advanced  in  value  he  is  clearly  entitled  to  the 
difference,  Avhatever  it  may  be.  As  he  has  had  the  use  of  the  property 
he  has  no  just  claim  on  account  of  the  ordinary  repairs  placed  upon  it; 
neither  has  he  a  claim  for  interest  on  the  investment.  But  he  is  unques- 
tionablj'  entitled  to  reimbursement  by  the  Government  of  Turkey  for  all 
amounts  he  may  have  expended  in  the  defense  of  his  acquired  title,  in 
addition  to  his  ]nirchase-money.  You  will  accordingly  be  governed  by 
this  instruction  in  further  treating  the  matter." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  "Wallace,  Mar.  13,  1885.     MSS.  Inst.  Turkey; 

For.  Rel.,  IBS.'i. 
As  to  unequal  taxation,  see  sxpra,  5  204. 

"  1  have  to  acknowledge  the  receipt  of  your  No.  720,  of  the  4th  instant 

in  which  you  inclose  a  copy  of  the  decree  of  the  supreme  court  of  Hayti, 

aflQrming  the  decision  of  the  'civil  tribunal'  in  the  matter  of  the  ap- 

jjlication  of  Mr.  C.  A.  Van  Bokkelen  to  terminate  his  imprisonment  on 

638 


CHAP.  IX.]  UNDUE    DISCEIMINATION    OF    JUSTICE.  [^  230. 

a  fair  and  full  assignment  of  all  his  property  for  the  benefit  of  his  cred- 
itors. 

"It  appears  that  on  a  judgment  being  entered  in  the  courts  of  Ilayti 
against  a  party  who  is  insolvent  he  is  ordered  by  the  court  to  imprison- 
ment for  a  period  fixed  at  the  court's  discretion. 

"  The  severity  of  this  process,  however,  is  mitigated  by  the  provision 
that  by  an  assignment  the  insolvent,  if  there  be  no  proof  of  fraud,  is 
entitled  to  release. 

"  In  other  words,  what  exists  in  Ilayti  is  im])risonmeut  for  debt,  such 
imprisonment  to  terminate  on  a  fair  and  full  assignment  of  all  the  in- 
solvent's property  for  the  benefit  of  creditors.  Ilence,  the  right  to  en- 
force a  debt  by  such  imprisonment,  and  the  right  to  have  the  imprison- 
ment terminate  by  making  a  fair  and  full  assignment,  are  rights  re- 
served by  law,  the  first  to  every  creditor,  the  second  to  every  debtor. 

"The  right  to  ward  off  imprisonment  in  this  way  is  as  much  an  every- 
day right  of  residents  of  Hayti  as  is  the  right  to  sue  and  enforce  the 
suit  by  imprisonment.  The  right  to  terminate  such  an  imprisonment 
by  assignment  is  as  much  a  part  of  the  decree  of  imprisonment  as  is  the 
imprisonment  itself. 

"  In  order  to  avail  himself  of  this  right,  Mr.  Van  Bokkelen  applied  for 
leave  to  make  the  '  cession  de  bicns,'  presenting  what  may  be  called  in 
our  law  a  petition  in  bankruptcy. 

"This  appeal  was  made  b}'  him  to  the  '  civil  tribunal,'  by  whom  it  was 
rejected,  not  on  the  plea  of  fraud,  which  could  be  readily  understood  by 
this  Government,  and  which  could  be  sustained  on  the  principles  of  in- 
ternational law,  but  on  a  plea  not  sustainable  in  international  law;  that 
while  liability  to  imprisonment  for  debt  attaches  to  foreigners  as  well 
as  to  Haytians,  to  Ilaytians  alone  and  not  to  foreigners,  belongs  that 
privilege  of  release  on  assignment  of  assets,  which  the  Haytian  code 
makes  an  incident  of  the  imprisonment. 

"This  decision  was  made  on  May  27,  1884,  and  from  it  Mr.  Van  Bok- 
kelen entered  an  appeal  to  the  court  of  cassation,  the  supreme  court  of 
Hayti. 

"  By  this  court  a  decree  of  aflirmation  was  entered  on  the  2Gth  ultimo. 
It  is  with  no  disrespect  to  the  eminent  judges  by  whom  this  opinion  was 
given  that  I  proceed  to  observe  that  not  only  is  it  irreconcilable  with 
accepted  principles  of  international  law,  but  that  it  onnnot  be  regarded 
as  in  any  way  defining  the  duties  of  Hayti  as  a  sovereign  state. 

"The  duties  of  the  Haytian  Government  to  the  United  States  are  not 
determined  by  Haytian  legislation  nor  by  Haj'tian  judicial  decisions, 
but  by  the  law  of  nation.s.  The  opinion  of  the  court  of  appeals  of  Hayti 
in  DO  respect  settles  the  international  liabilities  of  Hayti, 

"  Tliese  liabilities,  so  far  as  concerns  the  United  States,  are  deterniiMed 
by  the  iniiiciples  of  international  law,  as  limited  by  the  treaty  slipu- 
lutions,  which  form  llie  supreme  law  of  (ht^  huid,  l)oth  in  Hayti  and  in 
the  TTnited  States. 

031) 


§  230.J  CLAIMS.  [chap,  ix 

'•  The  treaty  of  1805,  ai)i)eale(l  to  by  tbe  conrt,  is  first  to  be  considered. 
The  pertineut  articles  of  that  treaty  are  as  follows: 

"  AUT.  VI.  Tbo  citizeus  of  each  of  the  contracting  parties  shall  be  iieniiitted  to 
enter,  sojoiun,  settle,  and  reside  in  all  parts  of  the  territories  of  the  other,  cupage  in 
business,  hire  and  occupy  warehouses,  provided  they  submit  to  the  laws,  as  well  gen- 
eral as  special,  relative  to  the  rights  of  traveling,  residing,  or  trading.  While  they 
conform  to  thelaws  and  regulations  in  force,  they  shall  be  at  liberty  to  manage  them- 
selves their  own  business,  subject  to  the  jurisdiction  of  either  party  respectively,  as 
well  iu  respect  to  the  consignment  and  sale  of  their  goods  as  with  respect  to  the 
loading,  unloading,  and  sending  off  their  vessels.  They  may  also  employ  such  agents 
or  brokers  as  they  may  deem  i»roper,  it  being  distinctly  understood  that  th(>y  are  sub- 
ject also  to  the  same  laws. 

"The  citizens  of  the  contracting  parties  shall  have  free  access  to  the  tribunals  of 
justice,  in  all  cases  to  which  they  may  bo  aparty,  on  the  same  terms  which  are  granted 
by  the  laws  and  usage  of  the  country  to  native  citizens,  furnishing  security  in  the 
cases  required,  for  which  purpose  they  may  employ  in  the  defense  of  their  interests 
and  rights  such  advocates,  solicitors,  attorneys,  and  other  agents  as  they  may  think 
proper,  agreeably  to  the  laws  and  usages  of  the  country. 

"Akt.  IX.  The  citizens  of  each  of  the  high  contracting  parties,  within  the  juris 
diction  of  the  other,  shall  have  power  to  dispose  of  their  personal  properly  by  sale, 
donation,  testament,  or  otherwise,  aud  their  personal  representatives,  being  citizens 
of  the  other  contracting  party,  shall  succeed  to  their  personal  property,  whether  by 
testament  or  ab  iiitestaio. 

"  They  may  take  possession  thereof,  either  by  themselves  or  by  others  acting  for 
them,  at  their  pleasure,  and  dispose  of  the  same,  paying  such  duty  only  as  the  citizens 
of  the  country  wherein  the  said  personal  property  is  situated  shall  bo  subject  to  pay 
in  like  cases.  In  the  absence  of  a  personal  representative,  the  same  care  shall  be 
taken  of  the  property  as  by  law  would  be  taken  of  the  property  of  a  native  in  a  similar 
case,  while  the  lawful  owner  may  take  measures  for  securing  it. 

"If  a  question  as  to  the  rightful  ownership  of  the  property  should  arise  among  claim- 
ants, the  same  shall  bo  determined  by  the  judicial  tribunals  of  the  country  in  which 
it  is  situated. 

''This  Government  contends  that,  for  the  reasons  already  given,  Mr. 
Van  Bokkelen  is  entitled  not  merely  to  have  the  same  rights  before  tlio 
Haytian  tribunals  of  justice  and  in  Ilaytian  process  which  he  would 
have  if  he  were  a  Haytian  citizen,  but  that  the  term  '  otherwise '  in  the 
ninth  article  enables  him  to  dispose  of  his  goods  by  means  of  a  general 
assignment  for  the  benefit  of  his  creditors  as  freely  as  he  could  by  'sale, 
donation,'  or  '  testament.' 

"  It  is  further  contended  that  as,  by  the  law  of  Hayti,  the  right  to  the 
release  of  an  imprisoned  debtor  after  an  assignment  for  the  benefit  of 
creditors  is  incident  to  imprisonment  for  debt  when  a  Haytian  is  the 
defendant ;  so,  under  the  treaty,  it  is  an  incident  of  imprisonment  for 
debt  when  a  citizen  of  the  United  States  is  the  defendant. 

"  It  is  true  that  the  treat}^,  in  respect  to  citizens  of  the  United  States 
appealing  to  Haytian  courts,  contains  the  clause  "  furnishing  security 
in  the  cases  required.'  This  provision  is  familiar  not  only  in  interna- 
tional but  in  municipal  law,  and  as  to  it  I  have  to  say  (1),  that  it  is,  in 
both  systems,  understood  to  mean  security  for  costs;  and  (2),  that  iu 
Mr.  Van  Bokkelen's  case  there  is  no  pretense  that  he  was  obliged  to 
6i0 


CHAP.  IX.]  UNDUE    DISCEIMINATIOX    OF    JUSTICE.  [§  230. 

'  furuisb   security'   in  any  ease  in  -which   the  term  can  be  properly 
used. 

"  If,  however,  the  opinion  of  the  court  of  cassation  may  be  understood 
to  exhibit  the  position  of  the  Haytian  Government,  it  may  be  that  the 
action  of  that  Government  in  sustainiuft-  Mr.  Van  Bokkelen's  detention 
is  founded  on  a  misaj)prehension  which  can  be  readily  removed.  The 
opinion  says  that  '  there  can  be  concluded  from  the  terms  of  articles  G 
and  9  of  the  treaty  nothing  which  would  authorize  the  opinion  that  this 
right  could  be  invoked  in  the  United  States  by  a  Haytian.' 

"  There  is  no  jurisdiction  in  the  United  States  in  which  the  right  of 
a  Haytian  to  make  an  assignment  of  his  entire  estate  for  the  benefit  of 
his  creditors  does  not  rest  on  the  same  basis  as  that  of  a  citizen  of  the 
United  States ;  aud  there  is  no  jurisdiction  in  the  United  States  in 
which  the  right  to  discharge  consequent  upon  such  assignment  would 
not  belong  to  the  Haytian  on  the  same  footing  as  to  the  citizens  of  the 
United  States. 

-'  If  comity  is  the  ground  on  which  the  Haytian  Government  rests, 
then,  on  the  ground  of  comity,  Mr.  Van  Bokkelen  should  be  at  once  re- 
leased, with  such  indemnity  as  is  due  to  him  from  his  imprisonment 
under  this  mistake  of  fact. 

"  The  grievance  to  Mr.  Van  Bokkelen  is  serious.  He  has  been  con- 
fined, though  in  failing  health,  for  quite  a  year,  in  a  prison,  and  by  this 
proceeding  not  only  are  his  means  of  supporting  himself  and  paying  his 
creditors  for  the  time  destroyed,  but  his  business,  should  he  survive, 
has  received  a  serious  if  not  a  fatal  shock.  But  the  iujury  to  the  com- 
mercial interests  both  of  Hayti  and  of  the  United  States  is  vastly  more 
far  reaching.  Xo  citizen  of  the  United  States  will  be  hereafter  willing 
to  do  business  in  Hayti,  if,  for  indebtedness  to  which  no  taint  of  crimi- 
nality is  imputed,  he  is  to  be  subjected  to  imprisonment  so  long  and  so 
oppressive  as  to  involve  the  destruction  of  his  means  of  livelihood  as 
well  as  injury  to  his  health  and  misery  to  his  fiimily.  It  is  not  to  the 
interest  of  either  Hayti  or  the  United  States  that  such  a  condition  of 
things  should  exist. 

"  I  forbear  in  this  place  to  show  in  detail  that  by  all  civilized  nations 
imprisonment  for  debt  is  now  abolished.  I  forbear,  also,  to  show  what 
could  be  readily  shown,  that  the  ccssio  honorum,  with  its  incident  of 
release  from  imprisonment,  is  now,  by  a  principle  accepted  in  modern 
international  law,  incident,  as  a  matter  of  course,  to  all  processes  in  which 
any  insolvent  debtor  is  under  arrest  in  a  case  not  involving  a  criminal 
offense.  I  forbear,  also,  to  press  the  fact  already  noticed,  that  on  i)rin- 
<iple8  of  comity,  as  appealed  to  by  the  Haytian  Government  in  this  very 
case,  there  is  no  ground  for^VIr.  Van  Bokkelen's  further  detention,  since 
in  every  juris(li(;tion  in  the  Unite<l  States  the  right  to  make  an  assign- 
ment for  creditors,  and  the  privilege  of  obtaining  relief  accruing  thereby, 
belong  to  the  foreigner  as  well  as  to  the  citizen. 

B.  Mis.  102— VOL,  II 11  G41 


§  230.]  CLAIMS.  [chap.  IX. 

"  The  release  of  Mr.  Van  Bokkeleu  is  now  asked  on  independent 
grounds.  It  is  maintained,  first,  that  continuous  inipiisonment  for  debt, 
when  there  is  no  criminal  ofiense  imputed,  is  contrary  to  what  are  now 
generally  recognized  principles  of  international  law.  It  is  maintained, 
secondly,  that  the  imprisonment  of  Mr,  Van  Bokkelen  is  a  contravention 
of  articles  G  and  9  of  the  treaty  of  1805  between  the  United  States  and 
the  Republic  of  Elayti. 

"  The  Haytian  Government  have  a  clear  and  ample  opportunity  to  re- 
lieve this  case  from  all  difficulty  by  recognizing  the  error  of  their  courts 
in  supposing  that  the  privilege  of  release  of  aaimprisoned  debtor  would 
be  denied  to  a  Ilaytian  citizen  by  the  United  States  courts,  upon  making 
assignment  of  his  i)roperty  for  the  benefit  of  his  creditors. 

"  You  are  now  instructed  to  earnestly  press  the  views  of  this  Govern- 
ment, as  outlined  in  this  instruction,  on  the  early  attention  of  the  Gov- 
ernment of  Hayti,  by  leaving  a  copy  thereof  with  the  minister  of  foreign 
affairs." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Laugstou,  Mar.  28,1885.     MSS.  Inst.,  Hayti ; 
For.  Eel.,  1885. 

"  In  the  examination  of  the  correspondence  on  file  in  this  Department 
in  relation  to  the  Ilaytian  mission  which  you  have  made  prior  to  setting 
out  for  your  post,  you  have  had  an  opportunity  to  acquaint  yourself 
with  the  facts  in  the  case  of  Mr.  C.  A.  Van  Bokkelen,  a  citizen  of  the 
United  States  now  in  prison  for  debt  in  Hayti  under  certain  civil  judg- 
ments rendered  by  the  courts  of  that  country.  All  the  papers  in  the 
case  will  also  be  found  of  record  in  the  legation  at  Port  au  Prince. 

"  It  is  unnecessary,  therefore,  to  recite  the  facts  of  Mr.  Van  Bokkelen's 
case,  or  to  refer  to  its  merits,  further  than  to  say  that,  in  the  opinion  of 
this  Government,  it  presents  a  clear  infraction  of  the  rights  of  an 
American  citizen  under  existing  treaties  between  the  two  countries,  by 
depriving  him  of  his  liberty  and  forbidding  him  certain  legal  resorts 
which  a  Haytian  can  employ  in  Hayti,  and  of  which  a  Haytian,  if  the 
case  were  reversed,  could  not  be  deprived  in  the  United  States. 

"The  question  being  of  Mr.  Van  Bokkelen's  competency  to  make  an  as- 
signment for  the  benefit  of  his  creditors  in  order  to  take  legal  i)roceediugs 
in  bankruptcy,  it  is  found  that  by  one  law  of  Hayti  the  security  offered 
must  be  in  real  estate,  and  that  by  another  law  he,  being  an  alien,  can- 
not hold  real  estate.  Hence  he  is  compelled  to  possess  what  he  cannot 
be  permitted  to  possess,  and  in  this  dead-lock  of  conflicting  laws  he  is 
subjected  to  treatment  to  which  no  Haytian  could  be  subjected,  and,  in 
fine,  a  discrimination  is  enforced  against  him  solely  because  he  is  a 
citizen  of  the  United  States. 

"  It  is  no  defense  to  this  statement  to  say  that,  under  the  laws  of  Hayti, 

he  cannot  be  otherwise  treated.     That  such  a  conflict  between  different 

laws  can  and  does  exist,  is  of  itself  a  violation  of  those  stipulations  of 

existing  treaties  which  guarantee  to  an  American  citizen  in  Hayti  (as 

C42 


CHAP.  IX.]  UXDUE    DISCRIMINATION    OF    JUSTICE.  [§  230. 

to  a  Haytiau  iu  the  Uuitecl  States)  the  same  rights  and  resorts  in  pro- 
ceedings at  hxw  as  to  native  bitizeus  of  the  respective  countries.  To 
close  to  an  alien  litigant  some  given  channel  of  recourse  open  to  a  na- 
tive without  leaving  open  some  equivalent  recourse,  is  a  denial  of  justice, 
and  to  base  a  persistent  refusal  to  afford  a  remedy  upon  the  letter  of 
defective  or  conflicting  laws  is  at  once  an  admission  of  failure  of  justice, 
to  the  injury  of  tbe  alien,  and  an  attempt  to  justify  by  the  mere  fact  of 
such  evident  failure  a  discriminatory  course  toward  an  alien  prohibited 
by  treaty  and  repugnant  to  jiublic  law. 

''This  Government  is,  from  every  point  of  view,  iu  a  position  to  insist 
on  the  substantial,  if  not  identical,  equivalence  of  treatment  of  Ameri- 
cans and  Haytians  before  the  Haytian  courts. 

"This  case  will  demand  your  fareful  attention  and  action  from  the  mo- 
ment of  your  arrival  at  your  post,  and  you  will  lose  no  opportunity  to 
endeavor  to  impress  the  Haytian  administration  with  the  necessity  of 
getting  this  matter  out  of  the  way  of  the  desirable  good  relations  of  the 
two  countries. 

"  You  will  not,  without  further  instructions,  present  the  matter  in 
writing  by  way  of  remonstrance  or  appeal. 

"This  Government  has  twice  of  late  made  solemn  and,  as  it  believes, 
just  representations  invoking  the  sense  of  justice,  of  equity,  and  of 
treaty  faith  of  the  Ilaytian  Government,  and  has  been  met  by  positive 
denial.    In  that  direction  it  is  not  easy  to  see  what  more  can  be  said. 

"You  will,  however,  in  conversation  with  the  minister  for  foreign  af- 
fairs, take  the  ground  that  the  Government  of  the  United  States  re- 
gards the  refusal  to  Mr.  Van  Bokkelen  bj^  the  Haytian  authorities  of 
the  right  to  make  an  assignment  as  a  discrimination  against  citizens  of 
the  United  States,  which  is  in  conflict  with  treaty;  and  that  it  will 
greatly  conduce  to  the  maintenance  of  friendly  relations  with  the  United 
States  for  the  Haytian  Government  to  see  that  Mr.  Van  Bokkelfu  is 
granted  in  substance  all  the  privileges  that  would  be  granted  to  citizens 
of  Hayti. 

"You  will  say  that  it  may  become  the  duty  of  the  President  to  lay 
before  Congress  any  continued  discrimination  of  this  kind  iu  defiance  or 
repudiation  of  treaty  duty. 

"You  will,  however,  forbear  from  making  the  release  of  Mr.  Van 
Bokkelen  a  condition  of  diplomatic  intercourse,  or  from  declaring  that 
a  refusal  to  release  will  be  followed  by  any  other  action  by  the  Govern- 
ment of  the  United  States  than  as  above  specified. 

"  You  will,  of  course,  bear  in  mind  that  this  Government  has  no  desire 
and  can  have  no  pnri)ose  to  obtain  for  i\Ir.  Van  Bokkelen  immunity 
fiom  any  just  responsibility  which  nuiy  attach  to  him  and  which  would, 
under  like  circumstances,  attach  to  a  Uaytiaa  citizen." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  'Ilioinpsoii,  May  81,  1885.     MSS.  IiiHt.,  Hayti  J 
Tor.  R<-1.,  1885. 

043 


§  230.]  CLAIMS.  [chap.  IX. 

"I  have  to  ackiiowU'd^c  with  much  satisfaction  the  reccii»t  of  Mr. 
Lan^ston's  Xo.  711,  iiniioinicing  that  on  the  27th  ultimo  ]Mr.  C  A.  Van 
Bokkelen,  confined  for  fifteen  months  as  a  debtor  in  the  Jail  at  Port  an 
Prince,  was  released. 

"Mr.  Lan^ston  observes  that  he  has  not  formally  presented  the  mat- 
ter of  indemnity  to  Mr.  Van  Bokkelen,  but  will  give  it  prompt  attention. 
It  is  trusted  that  no  step  of  this  character  has  been  taken  without  in- 
struction from  this  Department. 

"If  any  claim  for  indemnity  be  made  here,  it  will  receive  due  exam- 
ination on  its  merits.  It  is  to  be  remembered  that  up  to  a  certain  point 
the  proceedings  against  Van  Bokkelen,  at  the  suit  of  T()i)litz  &  Co., 
and  other  citizens  of  the  United  States,  whose  debtor  he  was  alleged  to 
be,  were  perfectly  regular  under  Haitian  and  general  bankrui)tcy  law. 
The  debt  was  established  and  the  insolvency  of  the  debtor  admitted. 
It  was  only  when  Van  Bokkelen  was  denied  certain  rights  which  a 
Hay  tian  debtor  would  have  under  the  insolvency  act,  that  this  Govern- 
ment claimed  his  treaty  rights,  as  an  American  citizen,  to  be  treated  in 
like  manner  as  a  Ilaytian,  and  be  released  from  imprisonment  for  debt 
on  making  the  same  or  an  equivalent  assignment  as  a  Ilaytian  debtor 
could  make.  By  releasing  Van  Bokkelen  without  the  formality  of  an 
assignment,  and  as  would  ai)pear  unconditionally,  it  may  be  found  that 
Hayti  has  annulled  the  only  security  which  Ilaytian  law  atibrded  for 
the  debt,  and  may  so  have  inflicted  injury  on  those  citizens  of  the  United 
States  at  whose  suit  the  judgment  was  obtained. 

"These  considerations  make  it  needful  that  any  claim  (or  indemnity, 
from  whatever  source,  should  have  the  most  careful  scrutiny  before  re- 
ceiving the  sanction  of  this  Government." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Thompsoij,  June  25,  18t-5.     MSS.  Inst.,  Hayti; 
For.  Eel.,  1885. 

"I  inclose,  with  a  reference  to  instructions  of  the  25th  and  26th  ul- 
timo in  the  case,  a  copy  of  a  letter  from  Mr.  C.  A.  Van  Bokkelen,  who 
was  released  on  the  27th  May  last  (by  what  means  does  not  ai)pear) 
from  confinement  in  the  jail  at  Port  au  Prince,  where  he  had  been  re- 
strained at  the  suit  of  Toplitz  &  Co.  for  debt,  some  fiitcen  months,  in 
which  letter  he  intimates  that,  in  view  of  the  apparent  success  of  Top- 
litz &  Co.  in  securing  their  debt,  which  he  assumes  to  be  a  fact,  other 
parties  will  pursue  a  similar  course.  I  also  inclose  a  co])y  of  a  letter 
from  the  father,  Mr.  W.  K.  Van  Bokkelen,  of  New  York. 

"I  have  informed  both  father  and  son  of  the  date  of  the  general  in- 
structions to  you  of  June  last  on  the  subject. 

"As  you  are  aware,  your  instructions  fully  cover  the  question  of  se- 
curing to  Van  Bokkelen  the  treaty  rights  of  procedure  in  the  courts, 
whether  as  plaintilf  or  defendant,  on  the  same  footing  as  a  citizen  of 
Hayti.    If  the  situation  created  by  the  Toplitz  suit  is  to  be  renewed  at 

6U 


CHAP.  IX.]  UNDUE    DISCRIMINATION    OF    JUSTICE.  [§  230. 

the  suit  of  Other  creditors,  you  will  use  your  utmost  exertions  to  have 
Mr.  Vim  Bokkeleu's  treaty  rights  duly  respected.  But  no  claim  for 
damages  for  imprisonment  is  to  be  presented  by  you  without  specific 
instructions  of  the  Department." 

Same  to  same,  Ju\j  20,  1885 ;  ibid. 

"  If  Mr.  Norwood's  statement  is  e.xact  iu  all  particulars  (and  there  is 
no  cause  for  me  to  doubt  the  good  faith  of  his  narrative),  his  well-dis- 
posed efforts  to  adjust  the  question  in  a  manner  which  shall  reconcile 
his  indisputable  civil  and  religious  rights  under  the  Mexican  constitu- 
tion, with  a  cou.^iderate  respect  for  the  sentiments  of  the  community 
in  which  he  dwells,  have  been  rendered  unavailing  by  the  concerted 
opposition  of  the  Mexican  authorities.  This  is  a  grave  charge,  and  if 
those  whose  duty  it  is  to  administer  the  laws  under  the  Mexican  con- 
stitution and  to  protect  all  law-abiding  persons  in  their  individual, 
civil,  and  religious  rights,  do  in  reality  render  the  fundamental  guar- 
antees of  no  avail,  the  matter  might  well  be  made  the  occasion  for 
formal  and  urgent  remonstrance.  It  is  alike  the  duty  of  the  Mexican 
Government  to  see  that  its  laws  are  respected  by  and  towards  all  per- 
sons within  its  jurisdiction,  and  the  obligation  of  this  Government  to 
see  to  it  that  any  American  citizen  whose  rights  are  infringed  without 
due  warrant  of  law,  shall  be  protected  in  those  rights." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  July  31, 1885.     MSS.  lust.,  Mex. 

"I  herewith  inclose  a  copy  of  a  letter  from  Mr.  C.  A.  Van  Bokkelen, 
of  the  19th  ultimo,  in  reference  to  his  illegal  im])risonment  at  Port  au 
Prince  and  his  claim  for  damages  in  consequence  thereof. 

"  In  view  of  Mr.  Van  Bokkelen's  present  statement  of  facts  and  those 
already  before  your  legation  in  regard  to  his  case,  I  desire  that  you  will 
call  the  attention  of  the  Government  of  Hayti  to  his  claim.  There  can 
be  no  doubt  that  Mr.  Van  Bokkelen  was  wrongiully  imprisoned  by  the 
Ilaytian  authorities  and  that  great  damage  accrued  to  him  thereby. 

"  Under  these  circumstances,  therefore,  you  are  directed  to  ask  and  to 
press  for  the  redress  claimed  by  Mr.  Van  Bokkelen,  or,  if  the  amount  to 
be  paid  cannot  be  immediately  agreed  upon,  for  a  reference  of  the  ques- 
tion to  an  arbitrator,  so  that  the  case  may  be  disposed  of  without  un- 
nece.s.sary  delay." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Thompson,  Oct,  2,  1885.     MSS.  Inst.,  Hayti; 
For.  P.el.,  1885. 

Oppression  of  a  citizen  of  the  United  States  by  a  Mexican  customs 
officer  is  a  subject  for  diplomatic  intervention  ;  ami  the  i)arty  injured  is 
not  confined  to  a  judicial  remedy. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  July  20,  1885.     MSS.  Inst.,  Mex. 

015 


§  230.]  CLAIMS.  [chap.  IK. 

"  I  herewith  iuclose  ;i  copy  of  a  letter  i'rom  the  secretary  of  the  Board 
of  Coiniiiissioiiers  for  Foreign  ]\Iissioiis  at  Boston,  IMass.,  of  the  29th. 
ultimo,  ;in(l  of  my  rei%  thereto  of  the  17th  instant,  in  respect  of  the 
cause  of  Ameri(;an  luissionaries  in  the  Ottoman  Emi)ire. 

"It  is  not  deemed  necessary  to  dwell  upon  any  ])articalar  cases,  the 
record  of  which  is  in  the  legation  at  Constantinople, for  it  is  assumed 
thot  you  will  have  familiarized  yourself  therewith  as  one  of  the  initial 
duties  incumbent  upon  you.  While  from  the  nature  of  these  cases  the 
conduct  of  this  class  of  questions  must  be  largely  intrusted  to  your 
discretion,  yet  it  is  not  to  be  supposed  that  you  will  be  any  less  active 
than  your  predecessors  in  endeavoring  by  every  means  known  to  the 
intercourse  of  sovereign  states  to  secure  all  due  protection  and  redress 
for  3"0ur  countrymen  who  take  up  their  abode  in  Turkey  and  observe 
its  laws. 

"  You  will  communicate  freely  with  the  Department  on  this  subject  as 
you  may  deem  it  necessary,  and  while  giving  your  own  views  as  to  the 
result  of  the  i)ractical  kuowdedge  you  may  be  able  to  obtain  on  the 
spot,  you  will  ask  such  special  instructions  as  you  may  think  needful. 
You  will  rest  assured  that  it  is  the  purpose  of  this  Government  to  go 
to  all  proper  limits  in  protecting  American  rights  and  interests  in  Tur- 
key, and  any  suggestions  that  you  may  ofifer  as  to  the  proper  method  of 
doing  so  will  have  careful  consideration.  At  the  same  time  you  will 
not  disguise  from  the  Porte  our  sense  of  disappointment  at  the  inade- 
quacy of  the  protection  accorded  to  law-abiding  citizens  of  the  United 
States  in  Turkey,  and  the  bad  impression  which  must  be  created  from 
the  continued  failure  to  punish  offenders  whose  identity  has  been  amply 
established.  The  Turkish  Government  is  no  less  concerned  than  our- 
selves in  seeing  to  it  that  no  imi)utation  on  its  good  faith  shall  be  pos- 
sible, and  that  no  culprit  shall  be  screened  from  the  consequences  of 
his  acts.  The  Government  of  the  United  States  recognizes  in  the  mis- 
sionaries an  honest  and  woithy  set  of  men  who  have  achieved  a  vast 
amount  of  good  and  whose  welfare  is  dear  to  multitudes  in  this  country. 
They  not  only  deserve  all  the  protection  possible,  but  should  be  shown 
every  proper  sympathy  in  their  life-work." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Aug.  17,  1885,  MSS.  lust.,  Turkej- ;  For. 
Rel.,  1885.    See  App.,  vol.  iii,  §  68a. 

As  to  protection  of  missionaries,  seo  supra,  $  54. 

As  to  protection  of  citizens  generally,  see  supra,  $  189. 

That  in  constitutional  Governments  the  local  judiciary  must  be  primarily  ap- 
pealed to,  see  infra,  §  241. 

"I  have  to  acknowledge  the  receipt  of  a  dispatch  from  Mr.  Wallace, 
No.  491,  of  April  9,  1885,  reporting  the  adverse  decision  of  the  Govern- 
ment of  Turkey  to  the  claims  for  indemnity  preferred  by  the  United 
States  on  account  of  the  assaults  committed  upon  the  Bev.  G.  C.  Knapp 
and  Dr.  G.  C.  Beynolds  and  Maurice  Pflaum,  M.  D, 
G4G 


C?IAP.  IX.j  UNDUE    DISCRIMINATION    OF    JUSTICE.  [§  230. 

"The  minister  for  foreign  affairs  maintains  that  his  Government  is 
not  to  be  held  pecuniaril}-  responsible  for  the  acts  complained  of,  and 
asserts  that  it  is  lawful  for  the  parties  interested  to  bring  suit  against 
the  'magistrates  for  prejudice  to  their  cases  by  reason  of  irregularities 
in  their  proceedings.' 

"I  am  unable  to  accept  this  reply  as  either  a  final  or  satisfactory 
answer.  The  magnitude  of  these  offenses,  no  less  than  the  cruelty 
which  particularly  characterized  the  treatment  received  by  Messrs. 
Knapp  and  Eeynolds,  leaves  no  other  course  open  to  this  Govern- 
ment than  to  again  appeal  to  that  sense  of  justice  which  should  alike 
animate  Turkey  and  prompt  her  to  make  honorable  amends  for  these 
crimes. 

"  I  do  not,  however,  deem  it  necessary  to  review  the  entire  correspond- 
ence in  each  of  these  cases,  since  it  Is  fully  before  your  legation.  I 
therefore  content  myself  with  a  brief  reference  in  each  case,  and  trust 
that  you  will  speedily  familiarize  yourself  therewith  and  renew  the  ap- 
plication for  a  money  indemnity  for  these  outraged  American  citizens. 
In  so  doing  you  will  keep  in  mind  the  general  views  as  to  this  class  of 
claims  expressed  in  my  Xo.  9,  of  the  17th  instant. 

"The  assault  upon  Messrs.  Knapp  and  Eeynolds  was  committed  May 
31,  1883,  by  Koords  near  Bitlis,  and  was  accompanied  with  robbery  and 
attempted  murder.  Dr.  Reynolds  received  ten  sword  cuts,  while  Mr. 
Knapp  was  beaten  over  the  head  with  a  heavy  club.  Both  gentlemen 
were  tied,  gagged,  and  dragged  into  the  bushes  and  left  to  die. 

"The  case  of  Dr.  Pflaum  occurred  also  in  1883,  April  28.  It  origin- 
ated in  an  unpaid  bill  for  medical  services  rendered  toTahir  Effendi,  of 
Axar,  and  involves  the  disputed  Article  IV  of  the  treaty  of  1830,  with 
a  peculiar  advantage  on  the  side  of  this  Government.  'The  governor 
of  Axar,'  says  Mr.  Wallace,  'did  not  confine  himself  to  arresting  Dr. 
Pflaum,  and  trying  and  sentencing  him ;  he  went  the  full  figure,  and 
punished  him  also.' 

"It  needs  also  to  be  remarked  that  in  connection  with  these  cases  the 
Government  of  the  United  States  has  not  yet  succeeded  in  obtaining 
satisfactory  treatment  by  Turkey. 

"Mr.  Wallace's  dispatches,  jS^os.  4G0  and  461,  of  January  8  and  13, 
1885,  present  the  latest  developments  in  the  cases  previous  to  his  No. 
491.  His  Xo.  400  contains  a  note  from  the  Turkish  Government  relative 
to  the  case  of  Dr.  Pflaum.  It  acknowledges  the  discovery  of  certain 
irregularities,  announces  the  removal  of  two  officials,  and  the  reprimand 
of  another.  His  No.  401  concerns  the  case  of  Messrs.  Reynolds  and 
Knapp.  It  also  acknowledges  the  discovery  of  some  irregularities,  and 
states  tliat  certain  officials  have  been  'put  under  judgment.' 

"In  the  ca.se  of  Dr.  Pflaum,  Mr.  Frelinghuy.sen  replied,  under  date 
of  January  29,  1885  (Xo.  257),  that  in  the  Department's  judgment  it 
seemed  fitting  that  this  admission  of  irregular  treatment  should  be  fol- 

647 


^  230.]  CLAIMS.  [chap.  IX. 

lowed  by  an  imiiiecUate  ofler  on  tbe  part  of  the  Sublime  Porte  to  uuiiio 
due  reparation  to  a  wrouged  American  citizen.  ]\Ir.  "Wallace  was  accord- 
ingly iiistriu'ted  to  renew  liis  application  for  a  suitable  money  indem- 
nity, should  he  not  receive  within  a  reasonable  time  an  ofl'er  of  settle- 
ment from  Turkey.  Respecting  the  complaint  of  Messrs.  Reynolds 
and  Kiiapp,  my  predecessor  remarked  in  his  instruction  (Xo.  2G0)  of 
February  4,  1S8."),  that  the  reported  a(«tion  of  Turkey  was  viewed  with 
satisfaction  as  evidence  of  a  desire  on  the  i»art  of  that  Government 
to  recede  from  the  dead-lock  into  which  the  matter  had  fallen  through 
the  action  of  the  Turkish  authorities,  and  of  a  jiurpose  to  act  in  ac- 
cordance with  international  comity  and  right  counsel.  'It  remains  to 
be  seen,  however,'  adds  Mr.  Frelinghuysen,  'whether  substantial  just- 
ice for  these  injured  men  can  be  reached,  and  certainly  no  less  will 
satisfy  us.  Under  all  the  circumstances  of  this  case,  the  Government 
of  the  United  States  rightly  expects  that  the  Government  of  Turkey 
will  make  early  and  due  reparation  to  Messrs.  Knapp  and  Reynolds 
for  the  outrages  i)erpetrated  by  Moussa  Bey,  whose  identity  is  beyond 
question.' 

"So  much  depends  on  the  tact  with  which  a  pecuniary  claim  on  a 
foreign  Government  is  pressed  and  on  the  influence  of  the  officer  pre- 
senting it,  that  1  do  not  think  that  even  two  refusals  from  Turkey  in 
the  present  cases  should  place  this  Government  in  a  position  in  which 
a  third  application  through  a  new  minister  would  be  imj)roper. 

"I  cannot  but  think  that  these  claims  possess  nnich  merit,  and  that 
the  Government  of  Turkey  should  be  urged  to  settlement.  I  am  not 
disposed  to  say  that  our  insistence  should  be  such  as  to  disturb  the 
friendly  relations  of  the  two  countries,  and  with  these  remarks  I  feel 
that  I  may  confidently  leave  the  subject  largely  to  your  discretion." 

Mr.  Bayartl,  Sec.  of  State,  to  Mr.  Cox,  Aug.  17,  1863.     MSS.  Inst.,  Turkey  ;  For. 

Rei.,  13?.^). 
For  liability  for   denial  of  justice  in  case  of  collision  in  port,  see  Mr.  Bayard, 

Sec.  of  State,  to  Mr.  Scott,  Sept.  3,  1885.     MSS.  Inst.,  Vcnez. ;  For.  Kel., 

isas. 

"  In  short,  while  withholding  a  privilege  may  comport  with  the  execu- 
tive function,  the  imposition  of  a  penalty  is  essentially  a  ju(lici;il  func- 
tion. Hence,  in  its  dealings  with  Turkey,  as  with  Russia,  this  Govern- 
ment cannot  acquiesce  in  the  executive  imposition  of  a  penalty,  especiallj' 
on  account  of  race  or  creed.  To  the  executive  of  another  country  all  our 
citizens  must  be  equal.  If  they,  being  voluntarily  in  a  foreign  land, 
contravene  its  municipal  statute,  it  is  for  the  law  to  ascertain  and 
punish  their  oflense." 

Mr.  Bayard,  Soc.  of  State,  to  Mr*  Cox,  Nor.  28,  1685.  MSS.  Inst.,  Turkey.  See 
eamo  to  same,  Oct.  15,  1885.  See  for  full  instructions  aupra,  $  171 ;  and  see 
also  $upra,  ^  ijS. 

048 


CHAP.  IX.]  UNDUE    DISCRIMIXATION    OF    JUSTICE.  [§  230. 

"  Wbeu  application  is  made  to  this  Department  for  ledress  lor  the 
supposed  injurious  actions  of  a  foreign  judicial  tribunal,  such  a])plica- 
tion  can  only  be  sustained  on  one  of  two  grounds: 

"  (1)  Undue  discrimination  against  the  i)etitioner  as  a  citizen  of  the 
United  States  in  breach  of  treat}'  obligations ;  or 

"  (2)  Violation  of  those  rules  for  the  maintenance  of  justice  in  judi- 
cial inquiries  which  are  sanctioned  by  international  law. 

"  There  is  no  proof  presented  in  Captain  Caleb's  case  establishing 
either  of  these  conditions.  It  is  true  that  it  is  alleged  that  there  was 
a  failure  of  justice,  and  were  this  Department,  sitting  as  a  court  of 
error,  it  is  not  improbable  that  there  are  points  in  the  proceedings  com- 
})lained  of  in  the  3Iexican  adjudication  before  us  which  might  call  for 
reversal.  But  this  Department  is  not  a  tribunal  for  the  revision  of 
foreign  courts  of  justice,  and  it  has  been  uniformly  held  by  us  that 
mistakes  of  law  or  even  of  fact  by  such  tribunals  are  not  ground  for 
our  interposition  unless  they  are  in  contiict,  as  above  stated,  either  with 
treaty  obligations  to  citizens  of  the  United  States  or  settled  principles 
of  iuternational  law  in  respect  to  the  administration  of  justice." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Morrow,  Feb.  17,  188G.    MSS.  Doin.  Let.    Infra, 
$  230a. 

"That  the  State  to  which  a  foieigner  belongs  may  intervene  for  his 
l)rotection  when  he  has  been  denied  ordinary  justice  in  the  foreign  coun- 
try, and  also  in  case  of  a  plain  violation  of  the  substance  of  natural 
justice,  is  a  proposition  universally  recognized. 

''One  of  the  highest  authorities  on  international  law,  Valin,  says: 

" '  To  render  legitimate  the  use  of  reprisals,  it  is  not  at  all  necessary 
that  the  ruler  against  whom  this  remedy  is  to  be  employed,  nor  his 
subjects,  should  Imve  used  violence,  nor  made  a  seizure,  nor  used  any 
other  irregular  attempt  upon  the  property  of  the  other  nation  or  its  sub- 
ject ;  it  is  enongli  that  he  has  denied  justice.'' 

"If  the  Government  of  a  foreign  country  refuses  to  execute  its  own 
laws  as  interpreted  by  its  own  courts,  and  to  give  etiect  to  the  decisions 
of  its  own  courts,  in  respect  of  a  foreigner,  it  denies  justice. 

"  If  the  tribunals  of  a  foreign  State  '  are  unable  or  unwilling  to  enter- 
tain and  adjudicate  upon  the  grievances  of  a  foreigner,  the  ground  for 
interference  is  fairly  laid.'     (Phill.,  Int.  Law.) 

"  In  his  recent  work  on  the  Law  of  Nations,  Sir  Travers  Twiss, 
wlio  holds  a  distinguished  position  as  a  writer  on  i)ublic  law,  says: 

"'International  justice  may  be  denied  in  several  ways:  (1)  By  the 
refusal  of  a  nation  either  to  entertain  the  complaint  at  all,  or  to  alloNT 
X\\v,  right  to  be  established  before  its  tribunals;  (!')  or  by  studied  delays 
and  impediments,  for  which  no  good  reason  can  be  given,  and  which  are 
in  eflect  equivalent  to  a  refusal;  or  (.J)  by  an  evi«lently  unjust  and  par- 
tial decision.'     (Law  of  Nations,  by  Sir  Tiavers  Twiss,  j)art  1,  p.  iiO.)" 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  JIcLaiio,  June  23,  IcdO.     MSS.  Itint.,  Fram-o. 
See,  particularly,  Ciitting'H  case  and  other  cuhoh  cited  supra,  ^  189. 

049 


§  230a.l  CLAIMS.  fcnAP.  ix. 

That  jiKl^iiiciits  of  prize  courts  of  a  captors  sovereign  do  not  relieve 
liiiii  when  such  jiulj;nients  are  internationally'  wrong,  see  infra,  §§  238, 
320rt. 

AVhen  there  exists  in  the  country  of  tlie  alleged  tort  an  independent 
judiciary  as  a  co-ordinate  power,  such  judiciary  should  be  primarily  ap- 
pealed to. 

Infra,  ^  241. 

(2)  But  not  meuk  national  pr.cuLiAurriEs  in  admixistkuing  justice  not  vio- 
lating IXTKItNATIOXAL  OBLIGATIONS. 

§  230a. 

As  to  obt'dicnco  to  local  laws  duo  hy  resideut  aliens,  sec  supra,  §  20G. 

As  to  questions  of  protection  of  citizens  in  such  relations,  see  supra,  $  180. 

As  to  submission  to  local  judicial  ppculiaritics,  see  iufra,  ^^  241,  24.'. 

The  mere  fact  that  a  (citizen  of  the  United  States,  when  on  trial  for 
an  offense  in  Austria,  which  lie  voluntarily  visited,  is  forbidden,  when 
under  arrest,  to  have  intercourse  with  his  friends,  is  not  ground  for  the 
diplomatic  interposition  of  the  United  States. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Jackson,  Apr.  6,  1855.     MSS.  Inst.,  Austria. 

Irregularities  in  the  prosecution  of  a  citizen  of  the  United  States  iu 
Chili,  not  amounting  to  a  denial  of  justice  or  an  undue  discrimination 
against  him  as  an  alien,  will  not  be  ground  for  the  interference  of  the 
Government  of  the  United  States. 

Mr.  Marcy,   Sec.   of  State,  to  Mr.   Starkweather,  Aug.  24,  1855.     MSS.  Inst., 
Chili.' 

The  right  to  sus])end  the  writ  of  habeas  corpus  is  one  of  municii)al  law 
to  be  declared  to  foreign  Governments  by  the  President  through  the 
Department  of  State ;  and  it  is  not  competent  for  foreign  Governments 
to  question  the  accuracy  of  such  declarations. 

Mr.  Seward,  Sec.  of  State,  to  Lord  Lyons,  Oct.  14,  1861.  MSS.  Notes,  Gr.  Brit. 
See  2  Ilalleck,  lut.  Law  (Baker's  ed.),  455. 

The  following  report  of  a  debate  in  the  British  House  of  Lords  is 
given  in  the  Diplomatic  Correspondence  of  18r>2,  published  by  the  Gov- 
ernment of  the  United  States,  as  appended  to  the  President's  message. 
After  inquiries  by  the  Earl  of  Carnavon,  Earl  Russell  said: 

•'  I  conclude  that  the  noble  earl  has  hardly  read  the  papers  which  have  been  laid 
upon  the  table  of  the  house  by  command  of  Her  Majesty;  for  the  noble  earl  would 
there  have  found  a  correspondence  between  Lord  Lyons  and  Mr.  Seward,  and  also  be- 
tween Ilor  Majesty's  Government  and  Lord  Lyons  on  this  subject.  The  noble  earl, 
in  his  statement,  seems  h3/dly  to  have  taken  into  account  the  very  critical  circum- 
stances in  which  the  Government  of  the  United  States  has  been  placed.  In  the 
spring  of  last  year  nine  of  the  States  in  the  scheme  of  confederation  declared  war 
against  the  Government  of  the  United  States.  In  such  circumstances  as  these  it  is 
usual  for  all  Oovernments  to  imprison  npon  suspicion  persons  who  tliey  consider  are 

G50 


CHAP.  IX. J  UNDUE    DISCRmiNATION    OF    JUSTICE.  [§  230a. 

taking  part  in  tlie  war  against  them.  In  a  case  wliicli  happened  not  many  years  ago, 
viz,  1848,  when  there  was  a  conspiracy  for  the  purpose  of  oTertuming  the  authority 
of  Her  Majesty,  the  secretary  of  state  applied  to  the  other  house  of  Parliament  for 
authority  to  arrest  persons  on  suspicion,  viz,  for  the  suspension  of  the  habeas  corpus 
act,  and  in  the  papers  presented  to  Parliament  at  that  date  there  are  two  cases  in 
which  the  lord  lieutenant  of  Ireland  had  ordered  the  arrest  of  two  American  per- 
sons; a  complaint  was  thereui^on  made  by  the  American  Government,  and  my  noble 
friend  (Lord  Palmerston),  at  that  time  at  the  head  of  the  foreign  office,  replied  that 
with  regard  to  those  persons  the  lord  lieutenant  had  due  information,  upon  which 
he  relied,  that  those  persons  were  engaged  in  practices  tending  to  subvert  the  author- 
ity of  the  Crown,  and  were  aiding  practices  which  were  being  pursued  in  that  part 
of  the  Kingdom.  Those  persons  were  never  brought  to  trial,  but  on  that  authority 
they  were  arrested.  After  this  civil  war  broke  out  in  America  complaints  were  made 
by  certain  British  subjects  that  they  had  been  arrested  upon  suspicion.  I  immedi- 
ately directed  Lord  Lyons  to  complain  of  that  act  as  an  act  enforced  by  the  sole 
authority  of  the  President  of  the  United  States,  and  especially  in  regard  to  one  of 
those  persons  there  seemed  very  light  grounds  for  suspicion,  and  I  said  ho  ought  not 
to  be  detained.  I  am  not  here  to  vindicate  the  acts  of  the  American  Government  for 
one  or  for  any  of  those  cases.  Whether  they  had  good  grounds  for  suspicion,  or 
whether  they  had  light  grounds  for  suspicion,  it  is  not  for  me  here  to  say.  If  I 
thought  there  were  light  grounds  for  suspicion,  it  was  my  business  to  represent  that 
to  the  Government  of  the  United  States,  but  it  is  not  my  business  to  undertake  their 
defense  in  this  house.  The  American  minister  replied  that  the  President  had,  by 
the  Constitution,  the  right,  in  time  of  war  or  rebellion,  to  arrest  persons  upon  sus- 
picion, and  to  confine  them  in  prison  during  his  will  and  pleasure.  This  question 
has  been  much  debated  in  America,  and  judges  of  high  authority  have  declared  that 
the  writ  of  habeas  corpus  could  not  be  suspended  except  by  an  act  of  Congress.  But 
certain  lawyers  have  written  on  both  sides  of  the  question ;  and  I  have  recently  re- 
ceived a  pamphlet  in  which  it  is  laid  down  that  the  meaning  of  the  law  of  the  United 
States  is  that  the  writ  of  habeas  corpus  can  be  suspended  on  the  sole  authority  of  the 
President  of  the  United  States.  The  question  itself  was  brought  before  Congress,  and 
a  resolution  was  proposed  that  there  should  be  no  arbitrary  arrests  except  with  the 
sanction  of  Congress.  But  it  was  contended  that  it  was  part  of  the  prerogative  of  the 
President ;  and  a  large  majority  decided  that  the  question  should  not  be  discussed, 
and  thereby  left  the  President  to  act  for  himself.  So  much  for  the  power  given  by 
the  Constitution  of  the  United  States.  With  regard  to  the  particular  acts  which 
the  Secretary  of  State,  under  the  sanction  of  the  President,  has  authorized  as  to 
the  arrest  of  British  subjects,  as  well  as  American  subjects,  I  am  not  here  to 
defend  those  arrests,  but  I  certainly  do  contend  that  it  is  an  authority  which 
must  belong  to  some  person  in  the  Government,  if  they  believe  that  persons  are  en- 
gaged in  treasonable  conspiracies,  in  the  taking  part  as  spies,  or  in  furnishing  arms 
against  the  Government.  I  believe  that  in  regard  to  many  of  the  cases  of  arbitrary 
authority  that  power  was  abused.  I  believe  that,  not  only  with  regard  to  persons 
arrested,  but  in  the  course  pursued,  there  was  unnecessary  suspicion,  but  I  do  not 
find  that  in  any  case  there  has  been  any  refusal  to  allow  British  consuls  at  places 
where  convenient  to  hear  the  cases  of  those  persons,  or  when  a  statement  was  made 
by  the  British  minister  that  Lord  Lyons  was  slow  in  representing  the  case  to  Mr. 
Seward.  Lord  Lyons  represented  to  me  that  these  cases  took  up  a  very  great  part  of 
his  time,  and  he  was  anxious  to  investigate  every  one  of  them.  Nor  can  I  say  that 
Mr.  Seward  has  refused  at  any  time  to  listen  to  those  complaints.  Ho  has  always 
stated  that  ho  had  information  upon  which  he  could  depend  that  those  persona  were 
engaged  in  treasonable}  practices  against  the  Govoniinont  of  the  United  States.  That 
being  the  question,  the  noble  earl  states,  upon  his  own  authority,  that  the  arrests  are 
illegal,  and  that  the  pcrsoiiH  are  kept  in  prison  illegally.  But  that  is  inoro  than  I 
can  venture  t^>  say.     I  can  hardly  venture  to  say  that  the  President  of  llie  United 

051 


§  230a.]  CLAIMS.  [chap.  ix. 

states  has  not  tho  power,  supposing  persons  are  engaged  in  treasonable  conspiracies 
against  tlio  authority  of  the  Government,  to  keep  tliom  in  prison  without  bringing 
them  to  trial,  and  it  would  require  a  strong  denial  of  the  authority  of  the  law  ollicers 
of  the  United  States  before  I  could  presume  to  say  that  the  President  of  the  United 
States  had  not  tliat  power.  With  regard  to  the  particular  cases  which  the  noble  carl 
has  referred  to,  I  am  unable  to  say  whether  or  not  some  of  those  persons  may  not 
liave  been  engaged  in  these  conspiracies.  AVo  all  know  that  during  the  time  in  which 
the  United  States  have  been  divided  there  has  been  much  sympathy  shown  iu  this 
country  on  one  side  and  on  the  other — some  have  shown  a  strong  sympathy  for  the 
North,  and  some  for  the  South.  (Hoar,  hear.)  With  regard  to  some  of  those  cases, 
I  liave  stated  I  thought  the  circumstances  were  such  that  it  was  quite  evident  that 
they  had  not  been  engaged  iu  any  conspiracy.  There  was  one  geutleinaji  who  haj)- 
pened  to  ho  a  partner  in  a  firm,  and  the  other  partners  had  great  connections  with 
the  South.  It  was  true  that  the  firm  had  strong  Southern  symi)athies,  but  the  gen- 
tleman himself  was  a  firm  supporter  of  the  Government  of  the  Union.  It  was  the 
mere  circumstance  of  letters  being  sent  to  his  partner  which  induced  his  arrest.  I 
thought  that  a  most  arbitrary  and  unjust  proceeding.  (Hear.)  Mr.  Seward  said  he 
thought  the  circumstances  were  enough  to  induce  suspicion,  but  that  as  soon  as  it 
was  ascertained  that  there  was  no  ground  for  that  suspicion  that  gentleman  was  re- 
leased. An  innocent  person  beiug  arrested  and  confined  for  several  days  iu  prison 
•was  nndoubtedly  a  great  grievance,  and  one  for  which  he  was  entitled  to  compensa- 
tion ;  but  beyond  the  right  to  complain,  and  beyond  the  constant  remonstrances  of 
Lord  Lyons,  the  British  minister,  in  every  such  case,  I  do  not  hold  that  the  circum- 
stances warrant  further  interference.  I  believe  the  gentleman  to  whom  I  allude  had 
stated  that  ho  expected  his  own  friends  would  procure  his  release.  The  noble  lord 
mentioned  three  cases.  I  was  not  awaro  of  the  cases  the  noble  earl  would  mention. 
But  with  regard  to  Mr.  Green,  this  is  the  statement  he  made  on  the  5th  of  Septem- 
ber: 'I  desire  no  action  to  be  taken  by  my  friends  in  England  iu  consequence  of  my 
arrest.  Lord  Lyons  has  represented  my  case,  and  it  will  receive  investigation  in  due 
time.  Meanwhile  I  am  in  the  hands  of  the  officers  of  this  fort.'  There  have  been 
other  cases  of  arrest  and  imprisonment  undercircumstanc.es  involving  considerable 
hardship.  There  have  been  many  cases  of  arbitrary  imprisonment  without  trial,  and 
these  cases  of  arbitrary  imprisonment  have  taken  place  under  a  Government  which 
is  engaged  in  a  civil  war,  perhaps  one  of  the  most  serious  and  formidable  in  which 
any  country  was  ever  engaged.  Right  or  wrong,  it  is  not  for  us  to  decide,  but  we 
must  admit  that  all  the  means  that  have  been  used  by  civilized  nations  in  warfare 
against  each  other  are  open  to  the  Americans  in  this  case.  With  respect  to  the  par- 
ticular cases,  I  believe  that  to  whatever  cause  it  maj'  be  owing,  whether  owing  to  the 
novelty  of  th«  case  in  North  America,  or  to  the  inexperience  of  persons  "sho  are  not 
conversant  with  the  carrying  out  of  affairs,  or  whether  it  is  this,  that  arbitrary  power 
can  never  be  safely  intrusted  to  any  one  without  being  abused,  to  whatever  cause  it 
is  owing,  I  believe  there  will  ever  be  many  cases  of  abuse  of  such  power.  (Hear, 
hear.)  But  in  every  case  where  a  British  subject  is  arrested,  and  a  reasonable  case 
is  made  out  for  bira,  I  shall  be  ready  to  instruct  Lord  Lyons  to  bring  the  case  under 
the  consideration  of  the  Government  of  the  United  States.  Lord  Lyons  has  never 
been  wanting  iu  his  duty.  (Hear,  hear.)  He  has,  I  think,  shown  himself  a  vigilant 
British  minister  iu  that  respect,  aud  I  trust  your  lordships  will  not  think  that  these 
cases  have  been  neglected  by  the  Government  of  this  country.     (Hear.) 

The  Earl  of  Derby.  "The  statement  made  by  my  noble  friend  behind  me,  and  borne 
out  by  the  noble  earl  opposite,  is  one  which  cannot  be  listened  to  without  feelings 
excited  in  the  highest  degree  in  consequence  of  the  treatment  to  which  British  sub- 
jects have  been  subjected.  I  am  willing  to  admit,  with  the  noble  earl,  that  every 
allowance  should  be  made  for  the  circumstances  and  the  difficulties  in  which  the 
Government  of  the  United  States  is  placed,  and  the  position  in  which  they  stand  with 
regard  to  the  civil  war  in  which  they  are  engaged ;  but  I  mast  say  tliat  the  course 

052 


CHAP.  IX.]  UNDUE    DISCRIMINATIOX    OF    JUSTICE.  [§  230a. 

they  have  pursued  with  respect  to  British  subjects  in  America,  uoiwithstaudiug  the 
remoustrauces  which  have  been, from  time  to  time,  presented  to  them  by  Lord  Lyons 
in  the  performance  of  his  duty,  which  ho  appears  to  have  pursued  with  great  pru- 
dence, is  most  trying  to  the  patience  of  this  nation.  I  think  he  was  justified  in  using 
strong  language  with  regard  to  the  course  which  has  been  pursued.  That  course  was 
anything  but  in  accordance  with  the  '  Cicis  Romanus  sum  '  doctrine  of  ihe  noble  lord 
at  the  head  of  the  Government.  (Laughter. )  The  noble  earl  opposite  has  apparently 
derived  some  advantage  and  instruction  from  the  correspondence  in  which  he  was 
engaged  with  Mr.  Seward,  because  in  an  early  stage  of  those  proceedings  he  very 
properly  invoked  against  those  proceedings  the  protection  of  the  American  law.  He 
said  ihat  that,  which  the  law  sanctions  with  regard  to  American  subjects  we  could 
not  complain  of  when  applied  to  British  subjects,  but  the  question  is  this,  does  the 
law  sanction  it?  The  answer  was  that  the  Government  did  not  consider  themselves 
bound  to  take  their  view  of  American  law  from  a  British  minister.  Such  was  the 
substance  of  the  courteous  reply  received  by  the  noble  earl.  (Hear,  hear.)  There  is 
one  question  which  I  must  ask  the  noble  earl  to  answer.  It  has  already  been  asked 
by  my  noble  friend  behind  me,  but  very  conveniently  the  noble  earl  has  not  thought 
it  necessary  to  reply  to  it.  He  states  that  the  Congress  has  passed  a  resolution  affirm- 
ing the  power  of  the  President,  under  the  Constitution,  to  suspend  the  habeas  corjms. 
Earl  Russell.  "  With  respect  to  the  first  point,  what  I  stated,  so  far  as  I  recollect, 
was  this  :  That  on  a  motion  to  the  Congress  with  regard  to  the  suspension  of  the  habeas 
corpus  by  the  President,  the  Congress,  by  passing  to  the  order  of  the  day,  or  laying 
the  proposition  on  the  table,  or  whatever  their  form  is,  voted  by  a  small  majority  in 
favor  of  the  proposition.  I  do  not  think  we  should  complain  if  the  President  exer- 
cises that  power,  and  the  Congress  does  not  interfere  with  it.  With  regard  to  the 
other  cases  which  the  noble  earl  has  brought  forward,  I  have  no  knowledge  of  them, 
or  I  would  have  taken  pains  to  inquire  into  each  of  them.  I  certainly  do  not  recol- 
lect the  case  of  any  person  being  called  on  to  take  the  oath  of  allegiance  to  the  United 
States,  except  one  in  which  there  was  some  question  with  Lord  Lyons,  and  that  was 
the  case  of  a  gentleman  who  had  given  notice  of  his  intention  to  become  a  citizen  of 
the  United  States.  Now,  a  person  wishing  to  become  a  citizen  of  the  United  States 
gives  notice  that  at  a  certain  time — within  three  months— he  intends  to  ask  leave  to 
become  a  citizen  of  the  United  States.  When  the  time  arrives  ho  must  not  only  take 
an  oath  of  allegiance  to  the  United  States,  but  he  must  forswear  all  other  allegiance, 
more  especially  to  Her  Majesty  Queen  Victoria.  (Laughter.)  This  gentleman  who 
was  arrested  made  an  appeal  to  the  British  Government,  and  the  answer  of  Mr.  Seward 
to  the  remonstrance  addressed  to  him  w^as,  '  This  gentleman  has  renounced  all  alle- 
giance, especially  to  Her  Majesty  Queen  Victoria.'  The  matter  was  further  incjuired 
into,  and  it  was  found  that  Mr.  Seward  was  wrong  in  his  fact — (hoar,  hear)— that 
this  gentleman  had  given  notice  that  he  intended  to  become  a  citizen  of  the  United 
States,  and  to  forswear  all  allegiance  to  Her  Majesty,  but  ho  still  remained  a  British 
subject.  He  had  thus  placed  himself  in  a  position  in  which  ho  could  not  claim  the 
protection  of  either  one  Government  or  the  other.     (Laughter.)" 

A  citizen  of  the  United  States  who  undertakes  to  conduct  religious 
services  in  a  foreign  country,  and  who  is  interfered  with  therein  by 
the  authorities  of  such  country,  acting  under  its  local  laws,  cannot  ob- 
tain the  intervention  of  this  Governnicnt  in  his  behalf  uidess  it  appear 
that  he  was  unduly  discriminated  against. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Dclaplaino,  June  2,  1875.     MSS.  Inst.,  Austria. 

Sec  Mr.  Evarts  to  Mr.  Kassou,  Mar.  I'J,  1871);   May  19,  1879;  ibid. 
As  to  j)ro1ection  of  misHionaricH,  hoc  supra,^  54. 
An  to  local  allegiance,  see  tiupra,  $  'JOIJ. 
As  to  limitations  in  such  cases,  sco  ivfra,  ^^  241,  242. 


§  231.]  CLAIMS.  [chap.  IX 

When  a  suitor  applies  to  foroign  tribunals  for  justice,  he  must  sub 
niit  to  the  rules  by  which  those  tribunals  are  goverued. 
1  Op.,  Bradford,  1794. 

A  person  born  in  Ireland,  but  naturalized  as  a  citizen  of  the  United 
States,  is  not  entitled,  when  arraigned  in  a  British  court  for  the  offense 
of  treason-felony,  to  the  privilege  of  a  jury  dc  medietate  ;  the  reason  be- 
ing that  as  the  right  of  trial  by  jury  de  mcdlciate  does  not  exist  gener- 
ally in  the  United  States,  we  have  no  right  to  complain  that  an  Amer- 
ican citizen,  indicted  for  crime  in  Great  Britain,  is  not  entitled  to  such 
privilege. 

12  Op.,  :?19,  Stanbery,  ieU7.     See  supra,  ^§201/. 

As  will  be  hereafter  seen,  it  will  be  a  defense  to  an  international 
claim  that  the  claimant  had  the  same  rights  allowed  him  as  were  nllowed 
"  subjects  or  citizens  of  the  place  of  the  alleged  injury." 

Infra,  $  244. 

VIII.  CONTRACTUAL  CLAIMS. 

(1)  Not  ordinarily  pressed. 

§  231. 

"  With  regard  to  the  contracts  of  an  individual  born  in  one  country 
with  the  Government  of  another,  most  especially  when  the  individual 
contracting  is  domiciliated  in  the  country  with  whose  Government  he 
contracts,  and  formed  the  contract  voluntarily,  for  his  own  private  emol- 
ument and  without  the  privity  of  the  nation  under  whose  protection  he 
has  been  born,  he  has  no  claim  whatsoever  to  call  upon  the  Government 
of  his  nativity  to  espouse  his  claim,  this  Government  having  no  right 
to  compel  that  with  which  he  voluntarily  contracted  to  the  performance 
of  that  contract." 

Mr.  J.  Q.  Adams,  Sec.  of  State,  to  Mr.  Salmon,  Apr.  29,  1823.    5  Am.  St.  Pap., 
(For.  Rel.)  403. 

But  the  treaty  with  Spain  of  February  22,  1819,  provided  for  the 
settlement  of  claims  on  contracts  as  well  as  claims  on  torts. 

Mr.  J.  Q.  Adams,  Sec.  of  State,   to  Messrs.  Wliite  et  al.,  Mar.  9,  1822.     MSS. 
Dom.  Let. 

"  Althougli  a  private  citizen  of  the  United  States  may  have  the  right 
to  enter  into  contracts  with  foreign  Governments  it  is  not  allowed  to  a 
diplomatic  representative  to  lend  on  such  an  occasion  his  official  sanction 
without  express  instructions  from  the  Department. 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  McAfee,  Sept.  23,  1836.     MSS.  Inst.,  Colombia, 

654 


CHAP.  IX.]  CONTEACTURAL    CLAIMS.  [§231. 

It  is  not  usual  for  this  Govern ment  to  iuterfere  except  by  its  good 
offices  for  the  i)rosecution  of  claims  founded  on  contracts  with  foreign 
governments. 

Mr.  Callioun,  Sec.  of  State,  to  Mr.  Crump,  May  28,  1844.  MSS.  Inst.,  Chili. 
See,  to  same  effect,  Mr.  Cass,  Sec.  of  State,  to  Mr.  Perry,  Nov.  15,  1860, 
MSS.  Dom.  Let.  ;  Mr.  Seward,  Sec.  of  State,  to  Mr.  Culver,  Oct.  3,  1863, 
MSS.  lust.  Venez.  ;  to  Mr.  Reid,-  July  17,  1868,  MSS.  Dom.  Let. ;  to  Mr. 
Couliliug,  Feb.  9, 1869,  ibid.;  Mr.  Fish,  Sec.  of  State,  to  Mr.  Conkling,  May 
8,  1869,  ibid.;  to  Mr.  Creuse,  May  25,  1869,  ibid.;  to  Mr.  Campbell,  Jan.  4, 
1870,  ibid.;  to  Mr.  Hanks,  Mar.  16,  1870,  ibid.;  to  Mr.  Wilsou,  July  12,  1870, 
ibid.;  to  Mr.  King,  Dec.  9,  1870,  ibid.;  to  Mr.  Blow,  Feb.  22,  1871,  MSS. 
Inst.,  Brazil;  to  Mr.  Foliugsby,  July  5,  1871,  MSS.  Dom.  Let.;  to  Mr. 
Washburne,  May  24,  1872,  MSS.  Inst.,  France;  to  Mr.  Merrick,  Jan.  22, 
1873,  MSS.  Dom.  Let.  ;  to  Mr.  Cameron,  Oct.  1,  1874,  ibid.;  to  Mr.  Rohan, 
Nov.  17,  1874,  ibid.;  to  Mr.  Beardsley,  Nov.  21,  1874,  May  13,  1875,  MSS. 
Inst.,  Barb.  Powers  ;  to  Mr.  Remington,  Aug.  2,  1876,  MSS.  Dom.  Let.  ;  to 
Mr.  Sherman,  Dec.  18,  1876,  ibid.;  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Seward, 
May  6,  1878,  MSS.  Inst..  China;  Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr. 
Baker,  June  27,  1882,  MSS.  Inst.,  Venez.  ;  to  Mr.  Heap,  Jan.  23,  1884,  MSS. 
Inst..  Turkey ;  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Scott,  July  13,  1885,  MSS. 
Inst.,  Venez. ;  to  Mr.  Sanders,  July  23,  1885,  MSS.  Dom.  Let. ;  to  Mr.  Seay, 
Feb.  20,  1836,  MSS.  Inst.,  Bolivia ;  to  Mr.  Hevner,  Apr.  21,  1886,  MSS. 
Dom.  Let. 

As  to  good  offices  as  to  guano  contracts,  see  Mr.  Marcy,  Sec.  of  State,  to  Mr. 
Fames,  June  20,  1855.     MSS.  Inst.,  Venez.     Infra,  $  311. 

"  The  Government  of  the  United  States  is  not  bound  to  interfere  to 
secure  the  fulfillment  of  contracts  made  between  their  citizens  and  for- 
eign Governments,  it  being  presumed  that  before  entering  into  such 
contracts  the  disposition  and  ability  of  the  foreign  power  to  perform  its 
obligations  was  examined,  and  the  risk  of  failure  taken  into  considera- 
tion. In  cases  of  personal  hardship  and  loss,  however,  like  the  present, 
the  Department  does  not  decline  forwarding  a  statement  of  the  griev- 
ance, with  a  recommendation  of  the  claim,  to  the  friendly  offices  of  the 
minister  of  the  United  States." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Fowler,  July  17,  1656.     MSS.  Dom.  Let. 

"  If  citizens  of  the  United  States  combine  with  Ecuadorians  and 
make  a  common  investment  of  capital  in  local  enterprises  in  Ecuador, 
80  as  to  secure  favors  from  the  Government  cf  Ecuador,  they  cannot, 
when  disappointed,  complain  that  the  Government  of  Ecuador  does  not 
promptly  discriminate  in  favor  of  their  own  national  privileges  as  Amer- 
icans, which  they  have  thus  compromitted." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Hassaurck,  Sept.  12,1865.  MSS.  Inst.,  Ecua- 
dor. 

"  The  people  who  go  to  these  regions  (South  America)  and  encounter 
great  risks  in  the  hope  of  great  rewards  must  be  regarded  as  taking  all 
the  circumstances  into  consideration,  and  cannot  with  reason  ask  their 
Government  to  complain  that  they  stand  on  a  common  footing  with  na- 
tive subjects  in  respect  to  tlic  alleged  wants  of  an  able,  prompt,  and 

055 


§231.]  CLAIMS.  [CIIAP.  IX. 

couscieutious  judiciary.  Wo  cannot  undertake  to  supervise  tiie arrange- 
ments of  tlie  whole  world  for  litigation,  because  American  citizens  vol- 
untarily expose  themselves  to  be  concerned  in  jtheir  deficiencies." 

Mr.  Sow.ard,  Sec.  of  State,  to  Mr.  Burton,  Apr.  '27,  18G6.    MSS.  Inst.,  Colombia. 

This  Government  will  refuse  to  intervene  to  i)ress,  by  any  means 
looking  to  force,  contractual  claims  by  citizens  of  the  United  States  on 
foreign  Governments,  oliering  in  such  cases  only  its  good  oflices;  and 
these  will  be  refused  when  the  debt  was  of  a  speculative  character,  or 
Avhen  it  was  incurred  to  aid  the  debtor  Government  to  make  war  on  a 
country  with  which  the  United  States  was  at  peace. 

Mr.  SL^wanl,  Sec.  of  State,  to  Messrs.  Leavitt  A.  Co.,  May  6, 1S68.    MSS.  Dom.  Let. 

"  It  has  not  been  customary  for  this  Department  oflicially  to  interfere 
in  behalf  of  citizens  of  the  United  States  who  may  have  entered  into 
contracts  with  foreign  Governments,  which  the  latter  may  not  have 
fulfilled.  The  Department  has  usually  limited  its  interposition  to  au^ 
thorizing  the  proper  diplomatic  agent  of  the  Government  abroad  to  use 
his  personal  good  offices  toward  obtaining  relief  for  the  claimant.  The 
reason  for  this  policy  is  that  claims  based  on  contract  arc  supposed  to 
stand  u[)on  a  very  different  footing  from  those  which  arise  from  injuries 
to  person  and  property  committed  by  the  authorities  of  any  foreign 
Government." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bassett,  June  27,  1870.     MSS.  Inst.,  Ilayti. 

"  By  adopting  a  foreigner,  under  any  form  of  naturalization,  as  a  citi- 
zen, this  Government  does  not  undertake  the  patronage  of  a  claim  which 
he  may  have  upon  the  country  of  his  original  allegiance  or  upon  any 
other  Government,  (See  svpra,  §  215.)  To  admit  that  he  can  charge  it 
with  this  burden  would  allow  him  to  call  upon  a  dozen  Governments 
in  succession,  to  each  of  which  he  might  transfer  his  allegiance,  to  urge 
his  claim.  Under  such  a  rule  the  Government  supposed  to  be  indebted 
could  never  know  when  the  discussion  of  a  claim  would  cease.  All  Gov- 
ernments are,  therefore,  interested  in  resisting  such  pretensions,  I  infer 
from  the  memorials  of  Mr.  Vigil  and  of  the  legislature  of  New  Mexico,  that 
the  claims  to  which  you  refer  arose  from  contracts,  express  or  imi»lied, 
with  the  Mexican  Government,  Our  long-settled  policy  and  practice 
has  been  to  decline  the  formal  intervention  of  the  Government  except 
in  cases  of  wrong  and  injury  to  person  and  property,  such  as  the  com- 
mon law  denominates  torts  and  regards  as  inflicted  by  force,  and  not  the 
results  of  voluntary  engagements  or  contracts. 

'<In  cases  founded  upon  contract,  the  practice  of  this  Government  is 
to  confine  itself  to  allowing  its  minister  to  exert  his  friendly  good 
offices  in  commending  the  claim  to  the  equitable  consideration  of  the 
debtor  without  committing  his  own  Government  to  any  ulterior  pro- 
ceedings." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  MuUer,  May  16,  1871.     MSS.  Dom.  Let. 

65G 


CHAP.  IX.]  CONTKAOTUAL    CLAIMS.  [§231. 

•'  It  is  not  the  policy  or  tlio  practice  of  this  Department  to  interpose  as 
a  matter  of  right  to  press  upon  foreign  Governments  chxims  of  its  citizens 
growing  ont  of  the  non-fullillmeut  of  private  contracts.  It  does  not,  how- 
ever, withhold  the  exercise  of  the  good  offices  of  its  representatives  in 
countries  where  such  claims  originate,  in  manifest  instances  of  injustice  to 
citizens  deserving  its  aid  ;  and  you  are  directed,  therefore,  in  that  sense 
to  bring  the  matter  before  the  minister  for  foreign  affairs  of  Japan,  with 
an  expression  of  the  strong  hope  on  the  part  of  this  Government  that 
ample  justice  may  be  done  to  the  claimant. 

"There  is  one  consideration  which  inspires  this  Government  with  a 
deeper  interest  in  cases  of  this  description  occurring  in  Japan  than 
would  be  entertained  concerning  similar  cases  in  some  other  countries, 
and  that  is,  that  those  foreigners  whose  services  have  been  engaged  by 
that  judicious  Government  to  impart  to  its  officers  and  people  a  knowl- 
edge of  the  arts  and  sciences  as  a  means  of  perfecting  that  develop- 
ment which  has  been  so  auspiciously  begun,  may  receive  such  prompt 
and  ample  fulfillment  of  the  engagements  made  by  the  authorities  em- 
ploying them  as  will  serve  as  an  encouragement  to  others  so  employed 
or  to  be  employed,  and  that  thus  they  may  labor  with  zeal  and  confi- 
dence, and  that  the  national  progress  maj'  be  thereby  accelerated  and 
assured." 

Mr.  Fish,  Sec.  of  Slate,  to  Mr.  Slicpurd,  Mar.  ID,  1872.     MSS.  Inst.,  Jaiiaii.     As 
to  Japau,  see  supra,  §  G8. 

"  Citizens  of  the  United  States  who  take  up  their  abode  in  a  foreign 
country,  and  enter  into  contracts  with  the  citizens  or  public  authorities 
there,  arc  jiresumed  to  make  their  engagements  in  accordance  with, 
and  subject  to,  the  laws  of  the  <;ountry  where  the  obligations  imposed 
by  the  contract  arc  to  be  fulfilled,  and  are  ordinarily  remitted  to  the 
remedies  afforded  by  those  laws  for  the  redress  of  grievances  resulting 
from  breaches  or  non  fulfillment  of  such  contracts. 

"Instances  may  sometimes  occur  in  which  there  has  been  a  denial  or 
miscarriage  of  justice  in  the  courts.  In  such  cases  the  good  offices  of 
the  Department  may  properly  bo  invoked  on  behalf  of  the  claimant. 
The  claims  now  in  question  are  not  deemed  to  be  of  a  character  which 
calls  for  such  interposition." 

Mr.  Tisli,  Sec.  of  State,  to  Jlr.  Wing,  Dec.  9,  187:].     MSS.  Inst.,  Ecuador. 

"  The  claimants  in  this  ca.se  stand  in  the  relation  of  parties  to  a  con- 
tract into  which  they  voluntarily  entered  with  the  Government  of  Era- 
zil,  against  which  they  now  seek  indemnity  for  losses  sustained,  result- 
ing, as  it  is  said,  from  acts  of  that  Government  alleged  to  be  in  con- 
travention of  their  contract.  It  is  a  well-established  rule  of  this  Gov- 
ernment tliat  in  such  cases  the  i)arties  are  remitted  for  the  redress  of 
injuiii's  K'sulling  from  any  breach  or  disregard  of  tlii^  contract  to  the 
jaws  of  tlie  country  in  wliich  tln5  agn.'('ni<'nt  \^-'^  i-nicrcMl  into  and  whero 
S.  Mia.  IGJ— VOL.  11 12  057 


§231.]  CLAIMS.  [chap.  IX. 

it  is  to  be  perfoniuHl,     This  rule,  so  far  as  known,  is  one  generally  rec- 
ognized by  other  civilized  powers." 

Mr.  Fish,  See.  of  State,  to  Mr.  Pratt,  July  17,  1875.     MSS.  Dom.  Let. 

When,  in  cases  of  chiiins  based  on  contract,  only  "  good  offices"  of  a 
diplomatic  agent  are  interposed,  such  agent  is  directed  "to  investigate 
the  subject,  and  if  you  sliall  find  the  facts  to  be  as  represented,  you  will 
seek  an  interview  with  the  minister  for  foreign  affairs  and  request  such 
explanations  as  it  may  be  in  his  power  to  afford." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Osborn,  Mar.  4,  1^7(5.     MSS.  Inst.,  Arjr.  IJep. 

"This  Government  does  not  interfere  diplomatically  to  enforce  claims 
of  actual  citizens  of  the  United  States  arising  out  of  contracts  vohin- 
tarily  entered  into  by  them.  When  a  contract  is  made  by  tlicm  under 
such  circumstances,  the  person  is  expected  to  have  considered  the 
ability  and  the  readiness  of  the  other  party  to  carry  out  the  contract. 
In  this  case  particularly  such  instructions  could  not  be  issued." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  S\\'ann,  May  4,  1876.     MSS.  Dom.  Let. 

"A  breach  of  contract  virtually  entered  into  between  a  citizen  of  the 
United  States  and  a  foreign  Government  with  which  this  Government 
holds  diplomatic  relations,  is  not  regarded  as  ground  for  official  inter- 
ference on  behalf  of  the  citizen." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Thomson.  Sept.  12,  1878.    MSS.  Dom.  Let. 

"Whilst  I  am  well  aware  that  claims  of  this  nature,  arising  out  of 
contracts  voluntarily  entered  into  by  the  citizens  of  one  country  with 
the  citizens  or  Government  of  another,  cannot  properly  be  made  the 
subject  of  diplomatic  intervention,  the  manifest  equity  of  this  demand 
has,  nevertheless,  impressed  me  with  a  confident  belief  that  its  pre 
sentation  in  this  form  to  the  Dominion  Government,  through  the 
medium  of  your  legation,  will  so  appeal  to  the  sense  of  justice  of  that 
Government  as  to  secure  for  it  early  attention  and  just  consideration." 

Mr.  Evarts,  Sec.  of  State,  to  Sir  E.  Thornton,  May  2,  1879.     MSS.  Notes,  Gr, 
Brit. 

The  Government  of  the  United  States  will  insist  on  fair  and  impar- 
tial  examination  and  adjudication  by  Ilayti,  without  discrimination  as 
to  nationality,  of  a  contractual  claim  by  a  citizen  of  the  United  States 
against  nayti. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Langston,  Dec.  13,  1879.     MSS.  In.st.,  llayti. 
See  supra,  §  189. 

"In  regard  to  claims  of  that  character  [contracts],  it  is  a  rule  of  uni- 
versal acceptance  and  practice  that  the  person  thus  voluntarily  enter- 
ing into  a  contract  with  the  Government  of  a  foreign  country  or  with 
the  subjects  or  citizens  of  such  foreign  power,  for  any  grievances  he 
may  have  or  losses  he  may  suffer  resulting  from  such  contract,  i;^ 
058 


CHAP.  IX.]  CONTRACTUAL    CLAIMS.  [§  231. 

remitted  to  the  laws  of  the  coiiutry  with  whose  Government  or  citizens 
the  contract  is  entered  into  for  redress." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Logan,  Mar.  22,1881.  MSS.  Inst.,  Cent.  Am. 
Sec,  however,  as  taking  a  mucli  more  extended  view,  Mr.  Blaine  to  Mr. 
Ilurlbnt,  Aug.  4,  1881.     MSS.  lust.,  Teru. 

"It  is  no  part  of  the  duty  of  this  Government  to  enforce  such  con- 
tracts [for  business  operations]  or  to  recover  damages  resulting  from 
their  violation.  Every  contract  is  in  general  to  be  regulated  by  the 
laws  of  the  country  in  which  it  is  made.  Natural  justice,  mutual  con- 
venience, and  the  practice  of  all  civilized  nations  require  that  contracts, 
whenever  enforced,  should  be  regulated  and  interpreted  according  to 
the  laws  with  reference  to  which  they  were  made;  otherwise  the  rights 
and  liabilities  of  parties  would  entirely  depend  on  the  law  of  the  coun- 
try where  the  remedy  might  happen  to  be  sought." 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Plielps,  Dec.  6, 1884.     MSS.  lust.,  Peru. 

"It  is  not  necessary  to  remind  you  that  an  appeal  by  one  sovereign 
on  behalf  of  a  subject  to  obtain  from  another  sovereign  the  payment  of 
a  debt  alleged  to  be  due  such  subject  is  the  exercise  of  a  very  delicate 
and  peculiar  prerogative,  which,  by  principles  definitely  settled  in  this 
Department,  is  placed  under  the  following  limitations. 

"1.  All  that  our  Government  undertakes,  when  the  claim  is  merely 
contractual,  is  to  interpose  its  good  offices;  in  other  words,  to  ast  the 
attention  of  the  foreign  sovereign  to  the  claim;  and  this  is  only  done 
wlien  the  claim  is  one  susceptible  of  strong  and  clear  proof. 

"2.  If  the  sovereign  appealed  to  denies  the  validity  of  the  claim  or 
refuses  its  payment,  the  matter  drops,  since  it  is  not  consistent  with 
the  dignity  of  the  United  States  to  press,  after  such  a  refusal  or  denial, 
a  contractual  claim  for  the  repudiation  of  which  there  is  by  the  law  of 
iia' ions  no  redress.    *     *     * 

"3.  When  the  alleged  debtor  sovereign  declares  that  his  courts  are 
open  to  the  pursuit  of  the  claim,  this  by  itself  is  a  ground  for  a  refusal 
to  interpose.  Since  the  establishment  of  the  Court  of  Claims,  for 
instance,  the  Government  of  the  United  States  remands  all  claims  held 
abroad,  as  well  as  at  home,  to  the  action  of  that  court,  and  declines  to 
accept  for  its  executive  department  cognizance  of  matters  which  by 
its  own  system  it  assigns  to  the  judiciary. 

"4.  When  this  Department  has  been  appealed  to  for  diplomatic  inter- 
vention of  this  class,  and  this  intervention  is  refused,  this  refusal  is 
regarded  as  final  unless  after-discovered  evidence  be  presented  which, 
under  the  ordinary'  rules  applied  by  the  courts  in  motions  for  a  new 
trial,  ought  to  cliange  the  result,  or  uidess  fraud  be  shown  in  the  con- 
coction of  the  decision." 

Mr.  B.ayanl,  Sec.  of  State,  to  Mr.  Jiispliain,  .June  LM,  Ih^?.').     MSS.  Doin.  Let. 

"  As  a  result  of  the  Departtncnt's  investigation,  it  is  found  that  the 
claim  of  the  memorialist  belong  to  a  class  not  ordinarily  the  subject  of 

059 


§  231.]  CLAIMS.  [cnAP.  IX. 

iiitt'inatioual  diplomatic  presentation.  There  is  no  doubt  that  the  Cen- 
tral American  Company  has  rendered  great  services  not  only  to  (Uiate- 
luala  but  to  the  commercial  world,  and  no  doubt,  so  far  as  can  be  judged 
from  the  papers  under  consideration,  that  the  coriwration  has  been 
treated  by  Guatemala  with  an  ungenerous  and  unlawful  hardship  by 
which  it  has  been  subjected  to  great  and  unmerited  losses.  But  at  tbo 
same  time  it  must  be  remembered  that  the  corporation  Avent  of  its  own 
volition  to  Guatemala,  knowing  that  it  subjected  itself  and  its  property 
to  the  laws  of  that  Republic,  and  that  the  liberal  gains  to  be  expected 
in  such  an  enterprise  were  to  be  secured  largely  in  consideration  of  the 
peculiar  risks  arising  from  the  system  of  a  country  not  only  with  an 
unsettled  jurisprudence,  but  liable  to  frequent  political  convulsions.  It 
is  a  great  misfortune,  not  only  to  the  corporation  but  to  the  numerous 
business  interests  with  which  it  is  connected,  that  the  risks  accei)tcd  by 
it  in  the  present  instance  should  terminate  so  disastrously.  But  they 
weie  necessarily  contemplated  by  the  corporation  when  it  voluntarily 
went  to  Guatemala. 

''The  rule  thus  stated  is  not  new.  It  has  been  applied  in  innumer- 
able cases  in  this  Department,  many  of  great  hardship.  A  contractual 
claim  is  held  as  a  rule  not  to  be  the  subject  of  diplomatic  treatment. 
And  this  rule  is  applied  with  strictness  to  cases  where  the  creditor  vol- 
untarily goes  to  the  debtor  country  to  conduct  in  that  country  an  en- 
terprise which  is  to  be  closely  bound  up  with  its  landed  and  business 
interests.  This  Government  would  peremptorily  repel  any  claim  by  an 
European  sovereign  to  exercise  international  supervision  over  such  of 
our  railroad  or  business  corporations  in  the  United  States  as  may  bo 
owned  by  such  sovereign's  subjects.  The  rule  which  this  Government 
would  thus  decline  to  recognize  it  cannot  with  propriety  propose  to 
others.    *     *     * 

"  The  rule  just  stated  does  not,  however,  preclude  our  diplomatic  rep- 
resentatives abroad  from  exercising  their  j)ersonal  good  offices,  under 
the  instructions  of  this  Department,  in  recommending,  to  the  Govern- 
ments to  which  they  are  accredited,  claimants  who  are  considered  by 
the  Department  to  bejust  creditors  of  such  Governments.  It  must,  how- 
ever, be  understood  in  such  cases  by  all  parties  that  such  good  offi- 
ces are  not  tendered  oflficially." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Dorslieimcr,  Jan.  25,  1866.     MSS.  Doni.  Let. 
As  to  good  offices,  see  infra,  $  233. 

"  In  respect  of  alleged  contractual  debts  of  foreign  Governments  to 
citizens  of  the  United  States,  the  rule  is  that,  while  this  Government 
may  interpose  its  good  offices  to  invite  payment  {infra,  §  233),  if  these 
oflQces  be  declined  and  the  existence  of  the  debt  be  denied,  its  interpo. 
sitiun  ceases.  In  the  present  case,  payment  of  this  claim  was  urged 
upon  Peru  by  former  Administrations,  and  its  payment  was  absolutely 
refused  on  the  ground  that  no  contract  of  the  character  claimed  had 
been  made.  Under  these  circumstances,  this  claim  is  not  regarded  as 
GGO 


CHAP.  IX.'J  CONTRACTUAL    CLAIMS.  [§  232. 

one  which  this  Goverument  shouhl  further  press  directly  upon  Peru  ; 
and  consequently  it  cannot  now  be  urged  indirectly  upon  Chili,  who,  in 
taking  possession  of  the  guano  deposits  in  question  under  a  treaty  ces- 
sion, did  so  with  recognition  of  the  liens  thereou  admitted  by  Peru  to 
be  valid." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cowie,  Juuo  15,  1835.     MSS.  Dom.  Let. 
'Mr.  Bayard,  Sec.  of  State,  to  Mr.  Christy,  .Juno  16, 1S85;  ihid. 

(2)  Exception  wni:r.i:  dii-lomacy  is  the  oxly  method  or  redkess. 

§  232. 

"  In  all  ci^ilized  countries  instruments  of  this  description  [charters] 
are  considered  as  sacred,  and  the  welfare  of  the  public  and  the  interests 
of  the  Government  itself  are  deemed  to  depend  upon  their  being  so 
held.  If  the  great  public  objects  for  which  charters  are  granted  and 
the  private  interests  involved  in  them  were  liable  to  be  sacrificed  at  the 
pleasure  of  the  dominant  authority,  no  authority  in  the  state  which 
might  succeed  it  could  expect  to  accomplish  a  public  object  by  similar 
means.  In  a  Government  which  has  been  so  changeable  as  that  of 
.Mexico,  it  is  particularly  necessary  for  the  public  weal  that  duties  un- 
dertaken to  be  performed  by  the  grantees  of  a  charter,  instead  of  be- 
ing strictly  and  harshly  judged,  should  be  viewed  in  a  spirit  of  equity 
and  even  indulgence.'' 

Mr.  Webster,  Sec.  of  State,  to  Mr.LetcIier,  Aug.  18,  1851.     MSS.  lust.,  Mex. 

"  What  the  United  States  demand  is,  that  in  all  cases  where  their  citi- 
zens have  entered  into  contracts  with  the  i)roper  Nicaraguau  authori- 
ties, and  questions  have  arisen  or  shall  arise  respecting  the  fidelity  of 
their  execution,  no  declarationof  forfeiture,  either  past  or  to  come,  shall 
l)0ssess  anj'  binding  force  unless  pronounced  in  conformity-  with  the 
provisions  of  the  contract,  if  there  are  any  j  or  if  there  is  no  provision 
for  that  purpose,  then  unless  there  has  been  a  lair  and  impartial  inves- 
tigation in  such  a  manner  as  to  satisfy  the  United  States  that  the  pro- 
ceeding has  been  just  and  that  the  decision  ought  to  be  submitted  to. 
Without  some  security  of  this  kind,  this  Government  will  consider  itself 
warranted,  whenever  a  proper  case  arises,  in  interposing  such  means  as 
it  may  think  justifiable  in  behalf  of  its  citizens  who  may  have  been  or 
who  may  be  injured  by  such  unjust  assumption  of  power." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Lauiar,  July  25,  18r)8.     MSS.  lust.,  Am.  St. 
For  an  account  of  a  debate  iu  the  British  Parliament  in  1849,  in  reference  to 
reprisals  for  unpaid  Spanish  bonds,  sec  infra,  ^  318. 

In  in.structions  by  Lord  John  llussell  to  SirC.  Wyke,  March  30,  1801 
(I)rit.  St.  Pap.,  1801-'02,  238),  is  the  following: 

"  You  are  aware  that  it  has  not  been  the  custom  of  Her  I^Iajesty's 
(iovcrnment,  although  they  have  always  held  themselves  free  to  do  so, 
to  interfere  authoritatively  on  bclialf  of  those  who  have  cho.sen  to  leml 
their  money  to   foreign   Govi-rMiiicnls,  and  the  .Mexican  bondhohlers 

001 


§  232.]  CLAIMS.  [cnAP.  ix. 

liavo  not  been  an  exception  to  this  rule.  Tlie  constilutional  Govern- 
ment, however,  while  established  at  Vera  Crnz,  nnder  the  Presidency  of 
Seiior  Juarez,  concluded  with  Cai)tain  ])unl()p,  two  years  ago,  an  ar- 
rangement by  which  it  was  stipulated  that  IT)  ])vi  cent,  of  the  customs 
receipts  at  Vera  Cruz  and  Tamjiico  should  be  assigned  to  the  British 
bondholders,  and  IG  per  cent,  to  the  holders  ol*  convention  bonds.  That 
convention  was  conOrmed  and  extended  by  the  arrangement  lately  made 
by  Captain  Aldham.  The  claims  of  the  bondhohU'rs,  therefore,  iuive 
acquired  the  character  of  an  international  obligation,  and  you  should  ac- 
cordingly insist  upon  the  punctual  fullillment  of  the  obligations  thus 
contracted." 

Under  these  instructions  Great  Britain  united  with  other  creditor 
powers  in  an  attack  on  ^Mexico  to  enforce  payment  of  this  indebted- 
ness. 

For  the  position  taken  by  the  United  States  at  the  time,  see  mipra, 
§  !J8.  The  civil  war  then  raging,  the  interposition  by  the  Government 
of  the  United  States  was  one  only  of  protest. 

When  a  Government  does  not  hold  itself  amenable  to  judicial  suit  by 
foreign  claimants  on  contracts  made  by  it,  this  "  may  be  held  to  form 
an  exception  to  the  general  rule"  as  to  contracts. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Gibbs,  Oct.  :M,  1877.     MSS.  Inst.,  Pern. 

"In  regard  to  which  [a  contractual  case]  diplomatic  interference  is 
never  put  forth,  except  when  there  is  a  failure  or  denial  of  justice  shown 
in  connection  with  it;  but  even  in  these  cases,  where  the  claim  presents 
peculiarly  meritorious  features,  the  Government  Avill  only  make  use  of 
its  good  offices  with  a  view  to  facilitating  the  efforts  of  the  claimant  to 
obtain  an  adjustment  of  his  claim," 

Mr.  Frelingliuyseu,  Sec.  of  State,  to  Mr.  Cnyler,  June  27,  1882.     MSS.  Uom. 
Let. 

The  Government  of  the  United  States  cannot  but  regard  with  grave 
anxiety  the  attempt  of  a  foreign  Government  to  compel  by  force  the 
payment  of  mere  contract  debts  due  subjects  of  such  Government  by  a 
South  American  state. 

Mr.  Frelingliuysen,  Sec.  of  State,  to  Mr.  Lowell,  Mar.  30,  1883.     MSS.  lust., 
Gr.  Brit. 

"There  have  been  instances,  however,  in  which  our  ministers  have 
received  instructions  of  the  character  proposed  [to  collect  foreign  bonds], 
to  the  extent  of  permitting  them  to  accept  payment  from  a  foreign  Gov- 
ernment on  account  of  the  principal  or  interest  of  its  obligations.  Such 
permission,  however,  was  preceded  by  the  assumi)tiou  that  the  foreign 
Government  was  ready  and  willing  either  to  make  the  payment  or  to 
negotiate  with  its  creditor  in  such  connection,  and  where  the  interven- 
tion of  a  consular  or  diplomatic  agent  of  the  creditor's  country  was  a 
convenience  to  both.  Mr.  W.'s  proposition  seems  to  be  founded  on  a 
wholly  different  basis  from  either  of  these.  It  is,  as  understood,  to  in- 
vest the  Government  of  tlic  United  States  with  the  legal  title  to  cer- 
G()2 


CHAP.  IX.]  CONTRACTUAL    CLAIMS.  [§  232. 

taiu  Eussiau  Louds,  ou  account  of  whicli  no  paymcDts  of  any  character 
appear  to  liave  been  made  for  twenty-live  years,  in  the  expectation  that 
this  Government  would  hy  such  assignment  act  as  the  party  in  interest 
(not  as  its  creditor's  advocate  or  trustee),  and  so  obtain  for  itself  more 
favorable  terms  for  the  liquidation  of  these  securities  than  those  to 
which  other  holders  are  subject." 

Mr.  Frclingliuyseu,  Sec.  of  State,  to  Mr.  Hunt,  Jan.  12,  1884.     MSS.  Inst-,  Rus- 
sia. 

"Your  letters  of  December  31  and  of  the  9th  instant,  in  relation  to 
the  collection  of  principal  and  interest  of  certain  Russian  bonds  in  your 
possession,  have  received  attention. 

.  "The  instances  to  which  allusion  was  made  in  my  letter  of  the  27th 
ultimo,  where  the  Department  has  authorized  its  representatives  abroad 
to  receive  payments  or  accept  settlements  of  the  bonds  of  a  foreign 
Government,  have  been  when  such  Government  was  ready  to  deal  with 
its  creditor,  and  where  the  intervention  of  a  consular  or  diplomatic 
agent  of  the  creditor's  country  was  a  convenience  to  both. 

"There  are  also  cases,  but  not  common  enough  to  form  a  rule  of  ac- 
tion, where  the  bonds  of  one  Government  being  wholly  or  largely  held 
by  the  citizens  of  another,  upon  default  thereof,  the  Government  of 
which  the  creditors  are  citizens  may  endeavor  by  diplomatic  remon- 
strance or  negotiation  to  effect  an  international  agreement  between  the 
two  countries,  prescribing  time  and  manner  of  adjustment. 

"  Your  proposition,  however,  seems  to  be  founded  on  a  wholly  differ- 
ent basis  from  cither  of  these.  It  is,  as  I  understand  it,  to  invest  the 
Government  of  the  United  States  with  the  legal  title  of  certain  Eus- 
siau bonds,  ou  account  of  which  no  payments  of  any  character  appear 
to  have  been  made  for  twenty-five  years,  in  the  expectation  that  this 
Government  would  by  such  an  assignment  act  as  the  party  in  interest 
(not  as  its  creditor's  advocate  or  trustee),  and  so  obtain  for  itself  more 
favorable  terms  for  the  liquidation  of  ihese  securities  than  those  to 
which  other  holders  thereof  are  subject. 

"Your  proposition  is  contrary  to  international  usage,  and  is,  more- 
over, inexpedient  to  a  degree  wliich  bars  it  from  Ikvorable  consideration, 
inasmuch  as  this  Government  would  not  wish  to  make  itself  a  jireferred 
creditor  over  other  of  its  own  citizens  or  foreigners  who  may  hold  other 
portions  of  the  same  debt." 

Mr.  Frelingliuyscn,  Sec.  of  State,  to  Mr.  Wright,  Jan.  17,  1H84.     MSS.  Doui.  Lot. 

"  The  attitude  of  this  Government  with  reference  to  the  settlement  of 
the  Egyptian  debt  question  has  been  one  of  friendly  neutrality.  At 
the  time  of  the  organization  of  the  commission  of  liquidation  in  ISSO, 
the  United  States  maintained  for  a  time  an  attitude  of  reserve,  owing 
to  the  fact  that  acquiescence  in  the  scheme  pledged,  or  appeared  to 
pledge,  the  Government  to  jiccei»t  as  binding  upon  any  of  the  citizens 
of  the  United  States  whose  interests  might  Ix;  involved,  the  action  to  be 

003 


§  "I'M).]  CLAIMS.  [CIIAP.  IX. 

Ilicrc'ul'tei'  taken  by  n  coiiimission  in  (ho  composition  or  control  of  ^vhicll 
tlicUnitO'l  States  had  no  part.  It  api>caring,  liowcxci",  that  no  interests 
of  iVnu'iicm  citizens  were  then  in  fact  to  be  subniilled  to  the  decisions 
of  the  coniinission,  and  animated  simply  by  the  desire  that  no  action  on 
onr  part  shonld  embarrass  the  I'^jiyptian  (iovernment  in  making  with 
the  actual  creditors  such  arrangements  as  might  be  acceptable  to  them, 
(his  Government,  at  the  urgent  wish  of  the  Kheilive's  Government,  in- 
structed its  representative  at  Cairo,  on  the  17th  of  July,  1880,  to  adhere 
to  the  plan  of  liquidation,  if  the  Egyptian  Government  regarded  such 
action  as  material  to  the  success  of  the  scheme.  The  Government  of  the 
United  States  thus  concurred  in  the  plan,  without  being  positively  in- 
terested therein,  and  simply  to  avoid  embarrassing  the  iiiendly  Gov- 
ernment of  the  Khedive." 

Mr.  Torter,  Acting  Sec.  of  State,  to  Mr.  riielps,  Sept.  l(i,  1885.     MSS.  Inst., 
Gr.  Brit. 

]\Ir.  J.  Q.  Adams,  Secretary  of  State,  in  instructions  to  ]\Ir.  Nelson, 
minister  to  Spain,  April  28,  1823,  took  the  ground  that  Spain  alone  was 
responsible  for  the  debt  due  Mr.  Meade. 

MSS.  Inst.,  Ministers.     5  Am.  St.  Pap.  (For.  Rcl.),  -417.     Ltfra,  ^  248. 

In  Marten's  Droit  des  gens,  299  (liv.  3,  cli.  3),  it  is  maintained  that 
when  "a  state  has  recourse  to  violent  financial  operations  tending  to 
do  away  witli  inherent  obligations  to  satisfy  its  indebtedness,  the  viola- 
tion of  ])roperty  rights  which  results  is  suflicient  to  authorize  other 
nations  to  take  up  in  this  resi)ect  the  cause  of  their  subjects,  and  to 
employ  for  their  protection  every  means  authorized  by  the  law  of 
nations." 

(:3)  Tknder  of  good  offices. 

§  233. 

"A  nsiiiister  is  not  on'y  at  liberly,  but  he  is  morally  bound,  to  render 
all  the  good  oflices  he  can  to  other  powers  and  their  subjcjcts  consist- 
ently with  the  discbarge  of  those  principal  responsibilities  I  have  de- 
scribed. But  it  belongs  to  the  state  where  the  minister  resides  to  de- 
cide in  every  case  in  what  manner  and  in  what  degree  such  good  oflices 
shall  be  rendered,  and,  indeed,  whether  they  shall  be  tolerated  at  all." 
Mr.  Seward,  Sec.  of  State,  to  Mr.  Corwiu,  Apr.  18,  1863.     MSS.  Inst.,  Mex. 

Good  offices,  being  in  the  nature  of  unofficial  personal  recommenda 
tion,  are  in  this  respect  distinguishable  from  official  intervention. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Cnrtin,  Oct.  1.5, 1870.     MSS.  Inst.,  Russia.     See 
instances  supra,  $  231. 

"  To  a  minister  of  your  experience  I  need  not  point  out  the  projjcr 
distinction  between  diplomatic  good  offices  and  personal  advocacy. 
To  extend  all  proper  protection  to  Anierican  citizens  and  to  secure  for 
them  in  any  interests  they  may  have  a  respectful  hearing  before  the 

GGl 


CHAP.  IX.]         CLAIMS  FOR  REAL  ESTATE.  [§  234. 

tribuuals  of  the  couutry  to  wliicli  you  are  accredited,  and  generally  to 
aid  tbcm  with  information  and  advice,  are  among  tbe  imperative  and 
grateful  duties  of  a  minister,  duties  which  increase  his  usefulness  and 
add  to  his  respect,  and  duties  which,  I  have  no  doubt,  you  will  fiiith- 
fully  perform. 

"  To  go  beyond  and  assume  the  tone  of  advocacy,  with  its  inevitable 
inference  of  personal  interest  and  its  possible  suspicion  of  improper 
interest,  will  at  once  impair,  if  it  does  not  utterly  destroy,  the  accepta- 
bility and  efficiency  of  a  diplomatic  representative." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Ilurlbnt,  Nov.  19,  1881.    MSS.     Inst.,  Peru. 
For  illustrations  of  good  offices,  see  supra,  §^  231,  232 ;  and  see  also  Mr.  Bayard, 

Sec.  of  State,  to  Mr.  Jackson,  July  28,  1885.     MSS.  Inst.,  Mex. 
As  to  Beaumarchais's  claim  against  the  United  States,  see  Am.  St.  Pap.,  (Claims) 

314,  319,  334, 343,  433, 484, 490,  538, 5(53, 531, 850. 

IX.  CLAIMS  FOR  HEAL  ESTATE. 

(1)   TlTLK   TO   el:   SUliD    FOU   AT  SITUS. 

§  234. 

Treaties  as  to  alien  holding  real  estate  are  considered  supra,  §§  138, 
150a,  1G3,  IGO. 

"  Tbe  rule  is  universal  that  every  question  involving  tbe  title  to  real 
estate,  whether  by  descent  or  purchase,  must  be  determined  by  the, 
law  of  tbe  country  wherein  such  real  estate  is  situated,  and  all  reme- 
dies for  injuries  iu  respect  thereof  must  be  pursued  by  tbe  party  ag- 
grieved before  the  duly  constituted  tribunals  of  such  country." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  de  Selding,  Mar.  3,  1336.     MSS.  Dom.  Let. 

Diplomatic  intervention  will  not  be  granted  to  secure  rights  to  real 
estate.  A  citizen  of  one  country,  who  buys  and  occupies  land  in 
another,  "cannot  require  his  native  Government  to  interfere  on  tbe 
subject  of  tbe  operation  of  municipal  laws  or  the  judgment  of  mu- 
nieijial  tribunals  upon  his  rights  of  immovable  property  in  this  foreign 
land." 

2  Pliill.  Int.  Law,  0;  adopted  by  Mr.  Fish,  Sec.  of  State,  in  lett<r  to  Mr.  Cone, 

Oct.  10,  1^:71.     MSS.  Dom.  Let. 
As  to  tlio  precariousness  of  title  of  citizens  of  the.  United  States  in  Turkey,  sm 

Mr.   Fisb's  dispatch   to  legation  at  Conslantinople,  Mar.   14,  1H72.     MS.*^. 

Inst.,  Turkey;  and  Mr.  Fisii  to  Messrs.  Thompson  <t  ah,  May  9,  1872,  MSS. 

Dom.  Let.     Sec,  also,  svpra,  ^^  Ki"),  Mi. 

"If  a  citizen  of  the  L'nited  ^^tati's  becoiin's  the  owner  of  real  estate 
in  a  distant  country,  ho  cannot  claim  for  hiinself  greater  privileges 
than  thos(!  accorded  to  residents  or  subjects  ol  the  country  in  which 
tbe  property  is  hebl." 

Mr.  FiHh,  Sec.  of  Stale,  to  Mr.  Wibh-r,  M.iy  C,  1870.     MSS.  Dom.  L<'t. 

GG5 


§  234.]  CLAIMS.  [cnAP.  tx. 

The  purchaser  of  land  in  a  foroij^n  country,  thoii<;h  lie  be  a  citizen  of 
the  Uuited  States,  holds  it  subject  to  tlie  h)eal  hiw  as  to  title  and  con- 
ditions. 

Mr.   Evarts,  Sec.  of  Stiiti-,   to   Mr.    G.    V.   Si  ward,    M:iy   G,  1878.     MSS.  Inst. 
China. 

A.  Mexican  statute  discriminating  against  citizens  of  the  United 
States  and  other  aliens  in  respect  to  the  capacity  to  hold  real  estate  in 
Mexico  is  in  conllict  with  the  treaty  of  1831. 

Mr.  Evarts,  Sec.  of  Stale,  (o  Mr.  Foster,  June  L>:5,  1879.     MSS.  Inst.,  Mcx.    Seo 

supra,  $  151. 
As  to  Mexican  logislatiou  iliscriniinating  ngaiust  citizmis  of  llio   Uuitcil  States 

as  to  the  holding  of  real  estate,  seo  letter  of  Mr.  Fri'linghwy.sen,  Sec.  of 

State,  to  Mr.  Howe,  Mar.  IT),  IHSl.     MSS.  Doin.  J  At.     And  see,  also,  siqjra, 

^$58,  172ir. 

The  courts  of  the  situs  are  the  proper  tribunals  in  which  the  title  to 
real  estate  can  be  determined,  whether  the  claimant  be  a  subject  or  a 
foreigner. 

Mr.Freliughuysen,  Sec.of  State,  to  Mr.  Sernggs,   Feb.  19,   1684.    MSS.  Inst., 
Colombia. 

Claims  of  citizens  of  the  United  States  in  reference  to  real  estate  in  a 
foreign  country  are  ordinarily  to  be  determined  by  the  courts  of  such 
country. 

Mr.  Porter,  Acting  Sec.  of  State,  to  Mr.  Hall,  June  9,  1885.     MSS.  Inst.,  Cent. 
Am.     See  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Hall,  June  IG,  17, 18fc5;  ibid. 

But  where  there  is  a  denial  of  justice  or  undue  discrimination  the 
Government  of  the  United  States  may.  intervene. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Hall,  July  13,  1885;  ihid. 

A  question  of  title  to  real  estate,  when  one  of  law  and  fact,  is  "to  be 
decided  by  the  lex  rci  siiw.  The  case  is  purely  one  for  the  Mexican 
judicial  tribunals  in  the  first  inistance,  and  cannot  properly  be  taken 
out  of  their  consideration  by  diplomatic  intervention.  It  can  only  be 
removed  from  the  courts  by  agreement  between  the  parties." 

A  claimant  in  such  case  "must  first  exhaust  his  rights  in  the  higher 
courts,  and  until  a  decision  in  the  court  of  last  resort  shall  have  been 
rendered,  which  decision  shall  amount  to  a  denial  of  justice,  there  is  no 
ground  on  which  to  base  a  diplomatic  complaint." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  July  17,  lc83.     MSS.  Inst.,  Mex. 

"Every  sovereign  state  prescribes  for  itself  the  terms  and  conditions 
upon  which  title  to  lands  within  its  jurisdiction  may  be  acquired  and 
held.  If  Turkish  law  imposes  a  disability,  as  to  the  tenure  of  real 
property,  upon  a  Turk  who  has  become  naturalized  elsewhere  without 
the  previous  consent  of  his  Government,  then  the  question  would  be 
one  of  subjection  to  municipal  regulations  of  those  who  have  volunta- 
rily placed  themselves  thereunder  in  a  matter  over  which  tho.se  regida- 
tions  have  sovereign  and  exclusive  control.  And  the  Turkish  Goveru- 
GGG 


CHAP.  IX.]  CLAIMS    BASED    OX   NEGLIGENCE.       [§§  235,  235«. 

meut  having  tbe  riglit  to  investigate  tbe  cases  of  persons  applying  as 
foreiguers  for  thfe  privilege  of  holding  lands,  or  for  any  other  personal 
privilege  over  whicli  municipal  laws  have  control,  it  would  seem  to 
have  the  right  to  demaud  of  them  such  evidence  as  would  enable  it  to 
ascertain  whether  the  applicants  labor  under  any  disqualification,  and, 
in  event  of  their  refusal  to  produce  such  evidence,  to  withhold  the  priv- 
ilege sought. 

"The  important  distinctions  are,  however,  to  be  borne  iu  mind  be- 
tween a  municipal  privilege  and  a  personal  right  and  between  with- 
holding such  privilege  and  imposing  of  a  penalty." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Cox,  Nov.  28, 1885.    MSS.  lust.,  Turkey.    See, 
for  fall  instructions,  supra,  §  171. 

The  laws  of  the  state  in  which  land  is  situated  control  exclusively  its 
descent,  alienation,  and  transfer,  and  the  effect  and  construction  of  in- 
struments intended  to  convey  it. 

Brine  r.  Ins.  Co.,  9G  U.  S.,  C-J7. 

The  Government  of  the  United  States  is  not  bound  to  indemnify  a 
British  subject  for  losses  sustained,  as  a  claimant  of  real  estate,  by  the 
settlement  of  tbe  boundary  line  between  New  York  and  New  Hamp- 
shire. This  would  be  so  on  general  principles;  but,  besides,  b3' tbe 
9th  article  of  the  treaty  with  Great  Britain  of  1794,  it  is  expressly  stip- 
ulated that  British  subjects  who  bold  lauds  in  tbe  United  States  shall 
hold  them  in  lile  manner  as  if  tJicij  tccrc  natives. 
1  Op.,  3-20,  Wirt,  1819. 

That  title  to  land  is  determinable  exclusively  by  the  lex  rei  sitw,  see 
Whart.  Confl.  of  Laws,  §§  273  ff.  But  this  does  not  preclude  diplomatic 
intervention  when  there  is  undue  discrimination  or  denial  of  justice  by 
the  judex  rei  sitcc. 

Stqyra,  $  230;  ivfra.  U  241,  2\la. 

^s  to  rights  of  foreigners  to  real  estate  in  Mexico,  see  Consular  Reports  on  Com- 
mercial Relations,  ]R=3,  Xo.  31.  Gr^S  ff. 

(2)  Oxiii-KWisr,  AS  'lo  Ti'.r.srASSKS  and  kvictions. 
JJ.). 

These,  when  amounting  to  forcible  deprivation  of  right  without  re- 
course to  law,  are  tbe  subjects  of  diplomatic  intervention. 

Siqyra,  $  230,  and  cases  there  cited.      And  sei;  App.,  vol.  iii,  $  23.5. 

X.  CLAIMS  BASED  ON  NEGLIGENCE. 
§  235rt. 

As  is  elsewhere  seen,  negligence  is  tlie  basis  of  claiins  against  neutrals 
for  noncompliance  with  neutrality  duties. 

Supra,  \\  227  ;  infra,  ^^N  \Vd:)  ff. 

CC7 


S^  23G.]  CLAIMS.  [chap.  ix. 

A  I'oroigii  Government  is  luiblc  for  daniagos  to  personal  property  sus- 
tained by  a  consul  of  the  United  States,  and  in  violivtion  of  his  consu- 
late, owiii;;,'  to  the  negligence  of  such  Govcrument. 

iMr.  rixliiiglmysen,  Sec.  of  State,  to  Mr.  Matlicws,  Jan.  IG,  183:1.      MSS.  Inst., 
Barb.  Towors.     Same  to  same,  Apr.  24,  13S3 ;  ibid. 

The  Government  of  aforeign  state  is  liable  not  only  for  any  injuiy  done 
by  it,  or  with  its  permission,  to  citizens  of  the  United  States  or  their 
property,  but  for  anj'  such  injury  which  by  the  exercise  of  reasonable 
care  it  could  have  averted. 

Report  of  Solicitor,  Dopt.  of  State,  atlhuKHl  l>y  Mr.  IJayavd,  Sec.  of  State,  to  Mr. 

Scrngs^,  May  ID,  1883.     MSS.  Inst.,  Colombia. 
As  to  liability  of  home  Government  for  negligence  in  presenting  claim,  see 

infra,  ^  248. 
As  to  negligence  of  ncntral  by  which  belligerent  is  injured,  see  supra,  ^  227; 

ivfra,  ^  402. 

XI.   LIAniLITY  FOR  rJilOIt  GOVERNMENT. 

GOVKRNMKNTS   LIAULK   FOR   TUKIU   rUEDFXESSOUS'   SPOLIATIONS. 

§230. 

The  position  of  the  Goverument  of  Louis  XVIII,  that  it  was  not 
liable  for  Napoleon's  spoliations,  is  refuted  at  length  in  ^Iv.  Gallatin's^ 
dispatch  to  Mr.  Monroe,  January  20,  1817. 

2  Gallatin's  Writings,  22. 

The  ])ayment  by  France  of  these  spoliations  was  in  subjection  to  the 
principle  of  such  liability. 

Sec  supra,  ^  222 ;  infra,  ^^  '.tl.")  ff. 

The  doctrine  that  "the  present  Government  of  France  is  not  respon- 
sible for  any  of  the  injuries  committed  against  the  Americans  l)y  that 
of  Bonaparte,  is  so  contrary  to  the  acknowledged  law  of  natipns,  to 
the  treaties  of  France  with  the  allied  powers,  and  to  the  unifoi-m  recog- 
nition of  all  the  laws  and  acts  of  Bonaparte's  Government  in  relation 
to  French  sul)jects  and  to  the  internal  concerns  of  France,  that  it  is  not 
probable  that  it  will  be  ofUcially  sustained." 

Mr.  Gallatin  to  Mr.  Trice,  Feb.  11,  1824.   2  Gallatin's  AVritings,  278. 

The  defense  to  a  diplomatic  appeal  for  redress  for  spoliations  that  the 
wrong  was  done  by  a  former  soveieign  who  was  a  usurper,  is  "  unfounded 
in  any  priucij^le  in  the  law  of  nations,  and  now  universally  abandoned. 
even  oy  those  powers  on  whom  the  responsibility  for  acts  of  i)ast  rulers 
bore  the  most  heavily." 

Message  of  President  .Jackson,  183.").     Deb.  1st  sess.,  23d  Cong.,  App.,:^.     Iiifra_ 

$  318;  stqyra,  ^  148c. 
As  to  details  of  spoliations  by  Frauce  under  Napoleon,  and  by  the  Europeat 

Governments  set  np  by  liim,  see  supra,  $  228. 

008 


CHAP.  IX.]  DEFENSES.  [§§  237, 238. 

The  same  positiou  was  maintained  in  1825  and  afterwards  as  to  Hol- 
land's liability  for  spoliations  under  King  Lonis. 

Correspoudeuce  submitted  by  President  Monroe,  Feb.   15,  1825.     House  Doc. 
402,  18th  Cong.,  2d  sess.     5  Am.  St.  Pap.  (For.  KcL),  596.     Supra,  $  152. 

"Upon  tbe  dissolution  of  tbat  confederacy  (that  of  Colombia)  its 
members  became,  and  liave  been  informed  that  we  hold  them,  jointly 
and  severally  liable  for  our  claims." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Semple,  Fob,  13,  1830.     IMSS.  Inst.,  Colombia. 

An  annexing  or  conquering  state  takes  the  state  annexed  or  con- 
quered subject  to  its  burdens. 

Stq)ra,  §  5. 

Eevolutious  in  a  State  do  not  affect  its  liability  for  prior  treaty  debts. 

Su]}ra,  ^  137. 

XII.  DEFi;XSES. 

(1)  Part  payment. 

§  237. 

As  to  final  payment,  see  infra,  §  2-15. 

Such  payment,  when  on  account,  only  bars  pro  ianto,  but  the  ac- 
ceptance by  claimants  from  the  Government  of  a  sura  smaller  than 
that  claimed  in  full  of  their  demand,  without  protest  or  objection,  is  a 
valid  and  binding  compromise  of  the  demand,  and  a  bar  to  a  suit  there- 
for against  the  Government. 

U.  S.  V.  Child,  12  Wall.,  232  ;  U.  S.  v.  Justice,  11  Hid.,  535. 

(2)  Lis  pendens;  election  or  ANOTnEii  Tin  buna  i,;    uks  adjudicata. 

§  238. 
As  to  decisions  of  arbitrations,  see  supra,  ^  221. 

Where  a  claimant  on  a  foreign  country  has,  by  the  law^  of  such  coun- 
try, "  the  choice  of  either  the  judicial  or  the  administrative  branch  of 
tlie  Government  through  which  to  seek  relief,"  and  selects  the  latter, 
this  does  not  make  the  arbitrary  decision  of  the  latter  against  him 
final  and  conclusive. 

Mr.    Fish,  Sec.  of   State,  to  Mr.  Nelson,  Jan.  2,  1873.     MSS.  lust.,  JIcx.     Sco 
uifra,  ^5  241,  329a. 

"The  Constitution  of  the  United  States  limits  and  delines  tlie  jiow- 
ers  of  the  several  branches  of  the  Government,  and  it  is  not  witliin  tlie 
juovince  of  the  executive  to  interfere  by  its  action  with  eases  pending 
in  the  courts.  Such  matters  are  within  the  cognizance  and  under  th(! 
eontiol  of  the  Judicial  l)ranch  of  the  Government,  subject  to  the  rnU'.s 
established  by  1;kw  for  the  administration  of  justice." 

Mr.  Fish,  Si'C.   of  State,   to  Mr.   Polodo  lleni;'.bo,  May   31,  IH73.     M.SS.  Note*, 
Spain. 

OGO 


§  238.]  CLAIMS.  [ClIAP.  IX. 

A  daim  which  the  cliiiinaiit  has  elected  to  i)rcsent  to  Congress  will 
not,  while  before  Congress,  be  entertained  by  the  Department  of  State. 
Mr.  Fish.  Sec.  of  Stiito,  to  Mr.  Sclilcizer,  Sept.  14,  1874.     MSS.  Koios,  Gorni. 

A  collusive  or  irregular  judgment  by  a  foreign  court  is  no  bar  to 
dii)lomatic  proceediuga  by  the  sovereign  of  the  plainlill"  against  tho 
sovereign  of  the  court  rendering  the  judgment. 

Mr.  Evaits,  Src.  of  Stato,  to  Mr.  Foster,  Apr.  10,  187'.).  MSS.  Inst.,  Mex.  Infra, 
^  ;i20a. 

A  suit  brought  in  Honduras  courts  by  a  citizen  of  the  United  States 
to  recover  estates  in  Iloudnras,  must  be  left  to  the  determination  of 
the  courts  in  which  it  is  brought,  unless  a  jiositive  denial  of  justice  be 
shown. 

Mr.  Frolingbnyscu,  Sec.  of  State,  to  Mr.  Hall,  June  18,  1882.  MSS.  lust.,  Ccut. 
Am.  See,  however,  Mr.  John  Davis,  Asst.  Sec.  of  State,  to  Mr.  Hall,  Oct.  9, 
1882.     Sec  infra,  U  241,242,  ?.20a. 

Prior  rulings  of  the  Department  will  not  be  reversed  unless  on  strong 
])roof  of  after-discovered  evidence  requiring  a  reversal  of  prior  action, 
accomi)anied  by  proof  that  there  were  no  laches  on  the  claimant's 
l)art,  or  of  fraudulent  imposition. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  13isi)bani,  Ji'inc  24,  ISS.'J.     MSS.  Dom.  Lot. 

"It  is  a  settled  practice  of  this  Department  that  a  decision  of  the 
Secretary,  given  deliberately  on  an  issue  specifically  presented  to  him, 
will  be  considered  as  final,  unless  it  is  shown  to  have  been  produced 
by  fraudulent  misrepresentations,  or  made  nnder  a  palpable  mistake  of 
fact  or  of  law." 

Mr.  Bayard,  Sec.  of  State,  to  Messrs.  Condert  Bros.,  Oct.  7,  1885.  MSS.  Dora. 
Let^. 

But  references  to  Department  offices  for  settlement  do  not  constitute 
cases  of  arbitrament  and  award  so  as  to  bind  the  parties  interested 
and  to  convey  final  title. 

Gordon  v.  U.  S.,  7  Wall.,  123  ;  cited  siqmi,  ^  221. 

"A  sentence  of  condemnation  pronounced  by  a  court  having  juri.sdic- 
tion  is  generally  regarded  as  prima  facie  valid,  and  acts  as  a  bar  to  a 
diplomatic  claim  on  account  of  the  transaction  judicially  determined, 
until  it  shall  be  shown  that  the  court  proceeded  in  such  a  n)anner,  or 
was  governed  by  such  rules,  as  to  make  its  action  subversive  of  justice." 

Mr.  Porter,  Asst.  Sec.  of  State,  to  Mr.  King,  Feb,  27, 18S6.     MSS.  Dom.  Lot. 

"When  a  case  has  been  adjudicated  by  the  Department,  such  adju- 
dication must  be  regarded  as  final,  nnless  clearly  shown  to  have  been 
produced  In*  fraud,  or  unless  there  be  proof  of  such  after  discovered 
evidence  as  would,  had  it  been  adduced  on  the  heaiing,  have  changed 
the  result." 

Mr.  Bayard,  Sec.  of  State,  to  Jlr.  West,  Apr.  28, 1886;  ihid. 
070 


CHAP.  IX.]  KES   ADJUDICATA.  [§  238. 

The  defense  of  res  adjudicata  does  not  applj'  to  cases  where  the  judg- 
ment set  up  is  in  violation  of  international  law. 

Infra,  §  242. 

As  to  res  adjudicata  in  international  awards,  see  infra,  §  31G;  sttjyra,  $  221. 

A  reference  of  a  claim  by  American  citizens  against  a  foreign  sover- 
eign to  an  umpire,  who  decides  in  favor  of  the  foreign  sovereign,  does 
not  preclude  the  injured  parties  from  api^lyiug  to  Congress  for  relief. 
Case  of  brig  General  Armstrong.     Sttjn-a,  $  227;  infra,  ^^  248,399,401. 

In  a  controversy  between  the  United  States  and  a  foreign  sovereign 
as  to  boundary,  the  courts  must  follow  the  decision  of  that  Department 
of  the  Government  which  is  intrusted  by  the  Constitution  with  the 
care  of  its  foreign  relations. 

Foster  v.  Neilson,  2  Pet.,  253. 

Although  it  may  have  been  a  rule  of  an  Executive  Department  to 
construe  an  act  of  Congress  relating  to  claims  in  a  particular  manner, 
yet,  when  Congress  has  afterward  expressed  au  opinion  in  conflict  with 
that  of  the  Department,  such  action  of  Congress  has  been  considered 
as  in  the  nature  of  a  legislative  interpretation,  which,  becoming  cour- 
tesy to  the  legislative  department  requires  the  Executive  to  observe. 
5  Op.,  83,  Johnson,  1849. 

Where  a  citizen  of  the  United  States  selects  a  foreign  forum,  this 
Government  presumes  that  he  will  obtain  his  rights. 

9  Op.,  374,  Black,  1859. 

It  is  within  the  power  of  the  head  of  an  Executive  Department  to 
allow  a  claim  which  has  been  rejected  by  one  of  his  predecessors,  with- 
out new  evidence.  But  the  decision  of  the  head  of  a  Department  ought 
only  to  be  reversed  on  clear  evidence  of  mistake  or  wrong. 

10  Op.,  56,  Bates,  1861. 

When  one  department  of  the  Government  has  lawfully  assumed 
jurisdiction  of  a  particular  case,  any  other  coordinate  department 
should  decline  to  interfere  with  or  assume  to  control  its  legitimate 
action.  Hence,  when  the  courts  have  acquired  jurisdiction  of  a  case 
of  maritime  capture  the  political  department  of  the  Government 
should  postpone  the  cousideration  of  questions  concerning  reclama- 
tion aod  iudemuities  until  the  judiciary  has  finally'  performed  its  func- 
tions in  those  cases. 

11  Op.,  117,  Bates,  18G4. 

When  a  court  of  the  United  States,  in  the  exercise  of  its  discretion, 
has  advisedly  determined  to  permit  a  vessel  libeled  for  violation  of 
tlie  neutrality  laws  to  be  released  on  bond,  the  executive  department 
has  no  jiower  to  interfere  with  the  proceedings. 

12  Op.,  2,  Stanbory,  1800.  Jnfra,  $  39G. 

G71 


§  238.]  CLAIMS.  [CIIAP.  IX. 

A  decision  made  by  a  former  head  of  Department,  after  having  heard 
the  parties  in  interest,  and  after  careful  and  tliorough  consideration  of 
tlie  case,  there  being  no  allegation  that  any  material  fact  can  be  shown 
which  was  not  before  him,  or  of  fraud,  should  be  regarded  by  his  suc- 
cessor as  final,  and  be  left  undisturbed. 
13  Op.,  3d7,  Akcriiiiui,  1S71. 

The  principle  that  the  final  decision  of  a  matter  before  the  head  of  a 
Department  is  binding  npon  his  successor  in  the  same  Department, 
under  certain  well-defined  exceptions,  has  been  so  frequently  dechired 
that  it  is  now  entitled  to  be  regarded  as  a  settled  rule  of  administrative 
law. 

13  Op.,  450,  IJristow,  acting,  1871. 

Where  a  claim  was  duly  referred  to  the  board  of  commissioners  con- 
stituted under  the  convention  with  jSTcw  Granada,  of  1857,  and  submit- 
ted to  an  umpire  authorized  by  that  convention,  who  reported  liis  award 
during  the  existence  of  the  board,  and  payment  was  suspended  at  the 
Treasury  by  request  of  the  Secretary  of  State,  ami  the  case  was  after- 
ward referred,  without  the  claimant's  consent,  to  the  commission  consti- 
tuted under  the  convention  of  18G4  with  the  United  States  of  Colombia, 
as  the  representative  of  thi'  late  Republic  of  New  Granada:  it  was 
held  by  the  Attorney-General  (Hoar)  that  by  the  submission  of  this 
claim  to  the  latter  commission,  in  the  manner  stated,  the  claimant  was 
not  divested  of  his  rights  against  New  Granada  under  the  award  of  the 
umpire  aforesaid. 

13  Op.,  19,  Hoar,  1869. 

The  award  not  having  been  vacated,  opened,  or  set  aside  during  the 
life-time  of  the  former  commission,  and  the  claimant  having  done  noth- 
ing since  to  waive  his  rights  thereunder,  it  was  further  ruled  that  such 
award  should  be  treated  by  our  Government  as  a  valid  and  conclusive 
ascertainment  of  his  claim  against  New  Granada. 

Ihid. 

That  a  sovereign  is  as  mucli  bound  to  redress  a  wrong  done  by  an  eri'oneous 

decision  of  a  court,  OTcn  of  admiralty,  .as  bj- erroneous  executive  aclion,  seo 

infra,  ^  329a. 

The  executive  and  the  judicial  departments  of  the  Government  being 
co-ordinate  powers,  it  follows  that  judicial  decisions  on  questions  of 
international  law,  while  entitled  to  great  respect,  do  not  bind  the  De- 
partment as  would  rulings  of  a  superior  tribunal.  In  addition  to  other 
reasons  for  this  position  (see  considerations  stated  in  Wliart.  Com.  Am. 
Law,  §  31)1),  the  very  fact  that  the  judiciary  applies  municipal  law, 
while  the  Department  of  State  is  bound  to  consider  not  merely  mu- 
nicipal law,  but  the  relations  of  the  United  States  to  foreign  powers 
irrespective  of  municipal  legislation  or  adjudication  (.smj;>'«,  §  9;  i»ft'(i, 
§  321)fl),  makes  it  necessary  for  the  executive  to  act,  in  matters  of  inter- 
national law,  as  a  powi  r  independent  of  the  judiciary.  In  accordance 
with  this  view  the  supremacy  of  the  political  departments  of  the  Gov- 
ernment has  been  acknowledged  by  the  judiciary  in  respect  to  tcrrito- 
G72 


CHAP.  IX.]  RES    ADJUDICATA  :    LIMITATION  :    WAR.     [§  239,  240. 

rial  boiiudaiies  {supra,  §  22)  and  to  recoguition  of  foreign  Governments. 
(Supra,  §  71.)  The  executive  also  is  regarded  by  the  judiciary  as  the 
Unal  tribunal  by  wliom  is  to  be  determined  the  question  of  the  pressure 
of  claims  by  citizens  of  the  United  States  on  foreign  sovereigns.  (Su- 
pra, §  220.)  A  construction  of  a  treaty,  also,  by  the  courts  of  one  of  the 
contracting  sovereigns  can  only  have  municipal  operation;  nor  can  such 
construction  be  set  up,  even  by  the  sovereign  by  whose  courts  it  is  pro- 
nounced, as  an  authority  when  conducting  negotiations  with  the  other 
sovereign  as  to  the  meaning  of  the  treaty.  (Supra,  §§  9,  133,  139.) 
That  meaning  is  a  matter  of  international  settlement.  If  the  i)arties 
cannot  agree  in  reference  to  it,  it  must  be  referred  to  arbitration  or,  as 
the  last  resort,  to  war.  Nor  can  the  judiciary  control  iJ-e  actions  of 
the  executive  in  either  the  construction  or  the  application  of  a  treaty. 
(Sujjra,  §  139.) 

That  a  sovereign  cannot  protect  himself  by  a  decision  of  one  of  his 
prize  courts,  when  such  decision  is  in  conflict  with  sound  piinciples  of 
international  law,  will  be  herealter  seen.  (Infra,  §  329a.)  It  is  impor- 
tant to  keep  in  mind  in  this  connection  the  sliiking  summary  of  Mr. 
Cushing,  given  A])ril  11,  ISGG,  to  the  Secretary  of  the  Treasury,  as  in- 
dorsed by  Sir  T.  Twiss  in  his  rami)hlet  on  Continuous  Voyages,  that 
'•  whilst  the  political  department  of  the  American  Government  was  en- 
gaged in  the  early  part  of  the  i)resent  century  in  combating  the  over- 
strained construction  of  the  laws  of  maritime  war,  set  up  by  the  courts 
and  publicists  of  England,  not  a  few  of  the  most  exceptionable  of  these 
constructions  were  at  the  same  time  being  transported,  one  by  one,  into 
the  jurisprudence  of  the  United  States  by  the  judicial  department  of  its 
Goxernment,  tcitli  a  prevailing  tendency  to  exaggerate  the  rights  of  piize 
in  the  interests  of  the  captors."  Sir  T.  Twiss  adds  "that  it  would  ill 
become  an  English  jurist  not  to  admit  that  the  prize  tribunals  of  the 
LTnited  States  had  ample  justification,  in  the  early  part  of  the  present 
century,  in  reciprocating  the  rigorous  rules  which  Lord  Stowall  applied 
to  the  trade  of  neutrals  during  the  wars  of  the  French  revolution,  and 
which  were  traditions  from  the  wars  of  the  previous  century."  As  a 
farther  illustration  of  this  tendency  may  be  cited  the  Springbok  case, 
discussed  infra,  §  3Gl'.  On  this  subject  see,  in  general,  Judge  Cooper's 
opinion  "on  the  effect  of  a  sentence  of  a  foreign  court  of  admiralty;" 
edited  and  approved  by  Mr.  A.  J.  Dallas,  Philadelphia,  1810,  and  quoted 
infra,  §  329o.     As  to  finality  of  awards  see  App.,  vol.  iii,  §  238. 

(3)  Limitation. 

§239. 

There  is  no  statue  of  limitation  as  to  international  claims,  nor  is  there 
any  i>resumption  of  i)ayment  or  settlement  from  the  lapse  of  twenty 
years.  Governments  are  presumed  to  be  always  ready  to  do  justice,  and 
whether  a  claim  be  a  day  or  a  century  old,  so  that  it  is  well  founded, 
every  principle  of  natural  equity,  of  sound  morals,  lecjuires  it  to  be  paid. 

Mr.  Crall6,  Acting  Sec,  of  State,   to  Mr.   (Jniini.,   Oct.  :i(),   1844.     MSS.  Inst., 
Chili.     See  Ai>[i.,  vol.  iii,  ^  2'.l'J. 

(4)    I.NTi:it.Mi:i>IATK  WAK  OR  SKTTI.KMKNT. 

§  210. 

'i'lic  effect  of  a  war,  followed  by  a  treaty  of  jx'aee,  is  to  extinguish  such 
claims  by  tlie  citizens  of  one  of  the  belligerents  against  the  Government 
of  tli«!  other,  as  are  not  provid^Ml  for  by  the  treaty  of  peace. 

•See  infra  \S  '.V.',7.  073 


§  240.]  CLAIMS.  [CIIAP.  IX. 

War  and  subsequeut  peace  extinguish  prior  treaty  obligations  not 
relating  to  sovereignty. 

Supra,  $  135;  iiijra,  ^  302  ff. 

The  eti'eet  of  the  quasi  war,  in  !Mr.  Adams's  time,  involving  "measures 
of  retaliation,  such  as  the  exc-hision  of  her  vessels  and  i)rodtice  from  our 
ports,"  in  releasing  spoliations  i)rior  to  that  ])i'ii()d,  is  discussed  in  a 
dispatch  from  !Mr.  Gallatin,  minister  to  l-'rance,  to  Mr.  iMonroe,  October 
14,  ISIG. 

2  Gallatin's  Writings,  14. 

Claims  by  British  subjects  against  the  United  States  prior  to  the  rat- 
ification of  the  treaty  of  Ghent,  and  not  presented  to  the  commission 
appointed  under  that  treaty,  are  barred  by  the  provision  of  such  treaty 
requiring  all  i)rior  claims  to  be  laid  before  the  commission,  or  to  be 
"considered  as  finally  settled,  barred,  and  thenceforth  inadmissible." 
Mr.  Sewanl,  Sec.  of  State,  to  Mr.  Stuart,  July  8,  18G2.    MSS.  Notes,  Gr.  Brit. 

But  it  may  be  otherwise  when  by  the  treaty  of  submission  there  is  no 
such  reference,  or  when  the  claim  is  one  not  falling  within  the  reference. 

See  6«j;ra,  ^221,  where  tbo  limits  of  intcruational  commissions  are  discnsscd; 
and  see  snjn-a,  $  238,  as  to  plea  of  res  adjudtcata  in  such  cases. 

''The  mere  fact  of  war  can  never  extingui.sh  any  claim.  U,  indeed, 
claims  for  indemnity  be  the  professed  ground  of  war,  and  peace  be  after- 
wards concluded  without  obtaining  any  acknowledgment  of  the  right, 
such  a  peace  may  be  construed  to  be  a  relinquishment  of  the  right 
on  the  ground  that  the  question  has  been  i)ut  to  the  arbitration  of  the 
sword,  and  decided.  But  if  a  war  be  waged  to  enforce  a  disputed  claim, 
audit  be  carried  on  till  the  adverse  party  admit  the  claim,  and  agree  to 
provide  for  its  payment,  it  would  be  strange  indeed  to  hold  that  the 
claim  itself  was  extinguished  by  the  very  war  which  had  compeTled  its 
express  recognition.  Now,  whatever  we  may  call  that  state  of  things 
which  existed  between  the  United  States  and  France  from  1798  to  1800, 
it  is  evident  that  neither  party  contended  or  supposed  that  it  had  been 
such  a  state  of  things  as  had  extinguished  individual  claims  for  indem- 
nifications for  illegal  seizures  aud  confiscations." 

]Mr.  Webster's  speech  oq  French  spoliations,  4  Webster's  Works,  1G3. 
As  to  French  spoliations  in  this  relation,  see  infra,  $  24-^. 

"  Mr.  Gallatin  having  been  applied  to  in  1827,  to  advocate  a  claim  for 
indemnity  of  an  American  citizen  on  the  British  Government  arising 
out  of  the  ca])ture  and  condemnation  of  vessels  and  cargoes  in  180!), 
and  consequently  prior  to  the  war  of  1812,  wrote  to  the  Secretary  of 
State :  '  You  wili  perceive  by  the  inclosed  copy  of  tiie  Treasury  answer 
that  this  is  one  of  the  numerous  cases  of  vessels  condemned  by  the 
British  courts  either  under  illegal  decrees  or  under  false  pretenses,  and 
for  which  no  indemnity  was  obtained  by  the  treaty  of  peace.  You  may 
remen)ber  that  at  Ghent  we  made  a  kind  of  protocol  for  the  i)ur[)ose  of 
preserving  the  rights  of  the  United  States  aud  of  their  citizens,  not- 
withstan(iing  that  omission.  The  claim  may  at  any  time  be  made, 
though  certainly  not  with  any  expectation  that  it  will  be  entertained  by 
Great  Bi  itain.  I  am  not  aware  that  this  has  ever  been  done.  However 
desirous  to  be  useful  to  our  citizens,  I  would  not  venture  on  a  step  of 

G74 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§241. 

this  kind  before  tbe  subject  bad  been  fully  examined  and  the  Presi- 
dent had  decided  thereon.'  (Mr.  Gallatin  to  Mr.  Clay,  April  3,  1827, 
MSS.)" 

Lawrence's  Wheaton  (ed.  1863),  878. 

If  a  nation,  during  a  war,  conducts  herself  contrary  to  the  law  of  na- 
tions, and  no  notice  is  taken  of  such  conduct  in  the  treaty  of  peace,  it  is 
thereby  so  far  considered  condoned  as  never  afterward  to  be  revived  or 
to  be  a  subject  of  complaint. 

Ware  v.  Hylton,  3  Dall.,  199,  230. 

(5)  NON-EXIIAUSTION   OF   LOCAL  JUDICIAL  IlEMKDIES. 
§241. 

Injuries  by  belligerent  and  mob  action  are  discussed  under  j)rior 
beads,  §§  224 .f. 

^Yhen  diplomatic  intervention  is  asked  to  press  payment  for  an  in- 
jury sustained  by  a  foreigner  in  this  country,  it  is  first  to  be  considered 
"  whether  the  party  complaining  has  duly  pursued  the  ordinary  reme- 
dies provided  by  the  laws,  as  was  incumbent  on  him,  before  he  would 
be  entitled  to  appeal  to  the  nation,  and  if  he  has,  whether  that  degree 
of  gross  and  palpable  negligence  has  been  done  him  by  the  national 
tribunals  which  would  render  the  nation  itself  responsible  for  their 
conduct." 

Mr.  JeQ'erson,  Sec.  of  State,  to  tlio  Att'y  Geu.,  Mar.  13, 1793.     MSS.  Dom.  Let. 

'•The  courts  of  justice  exercise  the  sovereignty  of  this  country  in 
judiciary  matters;  are  supreme  in  these,  and  liable  neither  to  control 
nor  to  opposition  from  any  other  branch  of  tbe  Government." 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Genet,  Sept.  9, 1793.    MSS.  Notes,  For.  Leg. ; 
4  Jeff.  Works,  C8. 

"  Tbe  rule  by  which  all  Governments  conduct  themselves  in  cases 
where  injury  has  been  done  by  individuals  of  one  to  individuals  of  the 
other  Government  is  to  leave  the  injured  party  to  seek  redress  in  the 
courts  of  the  other.  If  that  redress  be  finally  denied,  after  due  appli- 
cation to  the  courts,  it  then  becomes  a  subject  of  national  complaint." 
Mr.  Jefferson,  Sec.  of  State,  to  Mr.  King,  Dec.  17, 1793.     MSS.  Dom.  Let. 

To  give  a  foreign  Government  a  claim  against  us  for  damages  to  its 
citizens  or  subjects  by  our  failure  in  neutral  duties  "  there  must  be 
some  pali>able  default  on  the  part  of  our  Government." 

Mr.  Jefferson,  Sec.  of  State,  to  the  niinister  of  Great  Britain,  Dec.   -'(»,   1793. 
MSS.  Notes,  For.  Leg. 

rcrsoii;il  i?ijuries  iiifli('t<'(l  on  citizens  of  tbe  United  States  when  in 
Great  liritain  can  he  rediessed  only  by  appeal  to  tbe  b)cal  courts;  nor 
can  tbe  (ioveininent  of  the  United  States  complain  of  failure  of  justice 

075 


§  241.]  CLAIMS.  [CIIAP.  IX. 

iu  this  respect  if  the  trials  were  fair  and  tlic  due  course  of  Justice  was 
pursued. 

Mr.  Monroe,  Sec.  of  State,  to  Mr.  J.  Q.  Adams,  Nov.  Hi,  1815.     M.SS.  lust.,  Min- 
isters. 

''  The  general  rule  is  that  foreigners  are  bound  to  apply  to  the  tri- 
bunals of  Justice,  if  they  are  open,  for  redress  of  any  grievance  before 
they  appeal  for  it  to  the  Goverument  of  those  tribunals ; "  and  hence 
there  can  be  no  claim  against  the  Government  of  the  United  States 
for  injuries  inflicted  on  the  coast  of  Florida  on  two  wrecked  French 
vessels  and  their  crews,  unless  the  remedy  of  recourse  to  the  civil  tri- 
bunals has  been  exhausted. 

Mr.  Clay,  Sec.  of  State,  to  Mr.  do  Marcuil,  Mar.  28,  1827.     MSS.  Notes,  For. 
Leg.     See  also  ibid,  for  litter  of  Mr.  Clay  to  Mr.  Salazar,  Doc.  22,  1827. 

"  It  is  not  necessary  to  affirm  that  a  Government  is  not  responsible 
in  any  case  to  a  foreign  Goverument  for  an  alleged  erroneous  Judicial 
decision  rendered  to  the  prejudice  of  a  subject  of  said  foreign  Govern- 
ment. But  it  may  be  safely  asserted  that  this  responsibility  can  only 
arise  in  a  proceeding  when  the  foreigner,  being  duly  uotilied,  shall  have 
made  a  full  and  bona  fide,  though  unavailing,  defense,  and,  if  neces- 
sary, shall  have  carried  his  case  to  the  tribunal  of  last  resort.  ]f,  after 
having  made  such  defense  and  i)rosecuted  such  appeal,  he  shall  have 
been  unable  to  obtain  Justice,  then,  and  then  only,  can  a  demand  be 
with  propriety  made  upon  the  Government." 

Mr.  Clay,  Sec.  of  State,  to  Mr.  Tacon,  Feb.  .''),  1828.     MSS.  ?^'otes,  For.  Ley. 

"Although  a  Government  is  bound  to  protect  its  citizens,  and  see 
that  their  injuries  are  redressed  when  justice  is  plainly  refused  to  them 
by  a  foreign  nation,  yet  this  obligation  always  presuppo.ses  a  resort,  in 
the  first  instance,  to  the  ordinary  means  of  defense  or  reparation  which 
are  aflbrded  iu  the  country  in  which  their  rights  are  infringed,  to  which 
laws  they  have  voluntarily  subjected  themselves  by  entering  within  the 
sphere  of  their  operation,  and  by  which  they  must  consent  to  abide. 
It  would  be  an  unreasonable  and  oppressive  burden  ui)on  the  inter- 
course between  nations  that  they  should  be  compelled  to  investigate 
and  determine,  iu  the  first  iu.stance,  every  personal  offense  committed 
by  the  citizens  of  the  one  against  the  other."  (A  case  of  a  tort  com- 
mitted on  the  claimant  by  a  mob  in  Cuba.) 

Mr.  McLane,  Sec.  of  State,  to  Mr.  B.  .J.  Sbain,  May  28,  1834.     MSS.  Dom.  Let. 

When,  in  case  of  a  tort  inflicted  by  French  authorities  on  an  Ameri- 
can vessel,  the  Fiench  ministry  tenders  "  a  remedy  at  law,"  "in  the 
nature  of  an  execution  against  the  imperial  treasury  itself,"  "the  course 
indicated  by  the  minister  must  at  all  hazards  be  pursued  before  further 
diplomatic  interference  on  the  part  of  this  Goverument  could  be  exer- 
cised." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Salloustall,  June  13,  1840.     MSS.  Dom.  Let. 
GIG 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICJAL.  [§241. 

A  citizen  of  the  United  States,  residing  in  Canada,  whose  property 
there  situate  has  "been  destroyed  and  pillaged  by  British  troops,"  must 
first  seek  redress  from  the  "tribunals  of  the  country  under  whose  laws 
he  has  settled  ;"  and  until  this  remedy  has  been  exhausted  he  is  not 
entitled  to  the  intervention  of  the  Department  of  State  in  his  behalf. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Larrabee,  Mar,  9,  1846.    MSS.  Dom.  Let. 
As  to  the  maintenance  of  this  position  in  respect  to  the  Xew  Orleans  riot  of 

IS')!,  see  supra,  §  226  ;  in  reference  to  the  anti-Chinese  riots  of  1885,  supra, 

vS  67. 

"It  may  be  said  tliat  the  claimants,  according  to  the  ordinary  prac- 
tice of  the  British  courts,  had  a  right  of  appeal  to  the  lords  of  appeal, 
and  that  as  they  did  not  avail  themselves  of  that  right  they  must  be 
presumed  to  have  acquiesced  in  the  decision  of  the  admiralty  court." 
*  *  *  [To  this]  "  it  may  be  answered  that  the  claimants  had  incurred 
great  expense  in  the  prosecution  of  their  rights  before  the  admiralty 
court  and  had  not  the  means  for  carrying  the  case  further  in  the  form 
in  which  it  was  there  presented." 

Mr.  Webster,  Sec.  of  State,  to  ilr.  Lawreace,  Jan.  V^,  1851.     MSS.  lust.,  Gr. 
Bnt. 

Xor  does  this  limitation  apply  when  the  point  in  issue  has  already 
been  decided  by  the  appellate  court  adversely  to  the  claimant. 
Ibid. 

The  Government  of  the  United  States  cannot  be  he'd  liable  for  injury 
done  to  a  foreigner  by  a  State  court  erroneously  assuming  jurisdiction 
over  such  foreigner  to  his  detriment,  unless  proper  steps  had  been  taken 
for  reversing  the  decision,  and  all  legal  redress  had  been  exhausted. 
"No  principle  of  law  is  better  settled  than  that  the  acts  of  a  court  of 
limited  jurisdiction  exceeding  its  authority  are  not  obligatory,  and  the 
person  injured  in  consequence  thereof  can  have  redress  against  the 
court  as  well  as  the  parties  to  the  prosecution." 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Bertiuatti,  Dec.  1. 1856.     MSS.  Notes,  Italy. 

But  this  SO  far  as  concerns  i)ersonal  liability  of  judges  for  merely 
negligent  error,  or  error  not  involving  malicious  conspiiacy,  is  in  con- 
flict with  the  weight  of  authority.  It  must  ;ilso  be  remembered  that 
where  a  remedy  of  impeachment  is  ])r()vi(l<'d  no  civil  suit  based  on 
judicial  action  can  be  maintained.  On  the  other  hand,  a  Government 
is  as  liable  for  the  action  of  its  judicial  department,  m  violation  of  inter- 
national law,  as  it  is  for  the  action  of  its  exf^eulive  department  in  viola- 
tion of  international  law. 

Infra,  $  241a. 

The  Department  of  Stat*'  cannot  take  cognizance  of  claims  which  arc 
cognizable  by  the  judicial  tribunals  of  the  United  States. 

Mr.  Seward,  Sec.  of  State,  to  Lord  Lj  oiin,  Jan.  12, 186:^.     MSS.  Kotis,  t.'r.  Brit. 

C77 


§  241.]  CLAIMS.  [chap.  IX. 

Britisli  subjects,  personally  iiijiirod  in  one  of  the  States  in  this  coun- 
try, must  seek  redress  through  the  tribunals  of  such  State.  Their  case 
is  not  one  for  diplomatic  intcrveutiou. 

Mr.  Seward,  Sec.  of  Srate,  to  Mr.  Dcvous,  May  23. 1865.    MSS.  Dom.  Let. 

The  Department  of  State  cannot  ^ive  redress,  in  case  of  alleged  action 
injurious  to  foreigners  by  inferior  tribunals  in  the  United  States,  nntil 
all  means  of  legal  revision  or  correction  are  exhausted. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Cerrnti,  July  7, 1«G8.     MSS.  Notes,  Italy. 

A  claim  against  a  foreign  Government,  based  on  miscondnct  of  its 
domestic  oflicials  must  be  i)resented  to  the  judicial  dei)artment  of  such 
Government,  when  such  a  department  is  fairly  organized  and  has  juris- 
diction of  the  case. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Rugcr,  Oct  21,  IHCO.     MSS.  Dom.  Let. 

By  section  1068  of  the  Eevised  Statutes  (being  part  of  the  statute 
organizing  the  Court  of  Clainis)  "aliens  who  are  citizens  or  subjects  of 
any  Government  which  accords  to  citizens  of  the  United  States  the 
right  to  prosecute  claims  against  such  Government  in  its  courts,  shall 
have  the  privilege  of  prosecuting  claims  against  the  United  States  in  the 
Court  of  Claims,  whereof  such  court,  by  reason  of  their  subject-matter 
and  character,  might  take  jurisdiction."  Under  the  act  of  22d  July, 
18GS,  from  which  this  section  is  taken,  there  being  proof  of  i)rovisiou 
in  Turkey  for  the  prosecution  of  suits  against  the  Government  by  cit- 
izens of  the  United  States,  the  remedy  of  a  Turkish  subject  for  injuries 
alleged  to  have  been  inflicted  on  him  by  Government  officials  in  Texas 
is  in  the  Court  of  Claims. 

Mr.  lisl],  Sec.  of  State, to  Baltazzi  Elfendi,  IVb.  8,  1871.     MSS.  Notes,  Tnrkoy. 

"  It  is  not  within  the  province  of  the  executive  biaiich  of  this  Gov- 
ernment to  interfere  in  any  way  with  the  i>rcctedings  of  the  judiciary 
in  an  action  instituted  by  a  private  citizen,"  even  thougli  such  a  citizen 
be  a  consul  for  a  foreign  state. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Catacazy,  June  13,  1871.    MSS.  Notes,  Russia. 

A  claimant  must  exhaust  his  remedy  before  the  local  tribunals,  when 
there  are  such,  and  when  he  is  admitted  to  equal  privileges  in  them, 
before  he  can  claim  diplomatic  intervention. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Taylor,  Oct.  20,  1871.     MSS.  Doiu.  Let. 

'•  It  is  not,  however,  within  the  province  or  the  usage  of  this  Govern- 
ment to  interfere  in  behalf  of  private  citizens  in  their  assertion  or  rights 
of  private  property  situated  in  foreign  nations.  Such  rights  must  be 
regulated  and  determined  according  to  the  Liws  of  the  country  where 
the  property  may  be  situated. 

"  The  consul  of  the  United  States  at  Warsaw  is  Mr.  Charles  de  Ilof- 
man.  Mr.  Kulinski  is  at  liberty  to  address  him,  requesting  his  good 
offices  in  his  behalf,  or  whatever  unofficial  services  he  may  be  able  and 
G78 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§241. 

willing  to  render.  By  inclosing  this  present  letter  in  the  original  to 
the  consul,  that  officer  will  perceive  the  view  which  is  taken  by  the 
Department  of  the  case ;  but  the  Department  can  have  no  responsi- 
bility in  the  premises,  nor  can  the  consul  be  expected  to  incur  charges 
or  fees  other  than  such  which  he  may  bo  provided  with  funds  to  meet. 
Any  letter  to  the  consul,  if  desired,  may  be  sent  to  this  Department  for 
transmission  to  him. 

Mr.  Hale,  Asst.  Sec.  of  State,  to  Mr.  Kalnssowski,  May  8,  1872.     MSS.  Dom. 
Let. 

A  claimant  in  a  foreign  state  is  not  required  to  exhaust  justice  in  such 
state,  when  there  is  there  no  justice  to  exhaust. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Pile,  May  29,  1873.     MSS.  Inst.,  Vencz. 

"  When  the  matter  is  properly  within  the  jurisdiction  of  the  courts 
of  a  foreign  Government,  the  Government  of  the  United  States  does 
not  interfere,  except  when,  after  a  diligent  prosecution  of  all  the  reme- 
dies which  the  law  of  the  country  affords,  it  turns  out  that  there  has 
been  a  denial  of  justice  to  the  partj'  invoking  its  aid.  " 

Mr.  Davis,  Asst.  Sec.  of  State,  to  Mr.  Moscby,  June  23,  1873.     MSS.  Dom.  Lot. 

Questions  properly  belonging  to  the  judiciary  of  a  country  on  whom 
a  claim  is  made  should  be  submitted  to  such  judiciary,  and  should  not 
be  made  the  subject  of  diplomatic  interference,  unless  it  should  appear 
that  the  judicial  remedy  was  refused  or  perverted. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Pratt,  Mar.  20,  187.').     MSS.  Dom.  Let. 
Mr.  Fish  to  Mr.  Warren,  Feb.  17,  187.5  ;  ibid. 

If,  by  the  laws  of  Mexico,  it  is  made  essential  that  the  facts  on  which 
a  claim  against  her  is  based  ''  should  be  first  investigated  by  the  min- 
istry of  war  and  marine,  it  is  conceived  that  the  subject  should.be  re- 
ferred to  that  department  by  the  minister  of  foreign  affairs ;  such  w^ould 
be  the  course  pursued  by  this  Government  were  a  similar  demand  to 
be  made  on  it  by  that  of  Mexico." 

Mr.  Frelinghnysen,  Sec.  of  State,  to  Mr.  Morgan,  Nov.  15,  1833.     MSS.  Inst., 
Mex. 

"  I  have  had  the  honor  to  receive  your  note  of  the  28th  April  last, 
and  have  given  due  consideration  to  the  request  therein  i)resented  that 
the  pending  claim  of  Mr.  J.  P.Tunstall,  a  British  subject,  for  indemnity 
from  the  Government  of  the  United  States  by  rea.son  of  the  murder  of 
his  son,  John  II.  Tunstall,  in  1878,  in  the  Territory  of  New  Mexico, 
should  have  examination  and  decision  at  my  hands. 

"The  f.icts  of  the  case,  and  the  a.ssumed  merits  thereof,  on  which  Iler 
Maj«',sty's  Government  ba.scs  its  expectation  that  the  claim  of  I\Ir.  J.  P. 
Tunstall  will  be  recognizecl  by  the  Government  of  the  United  States, 
arc  so  fully  set  forth  in  tiic  (^orrespondcTtce  exchanged  between  this  De- 

(170 


^^  241.]  CLAIMS.  [chap.  IX. 

partmeut  aud  your  legation  siuce  March  9,  1878,  tbc  ilato  of  Sir  Ed- 
ward Thornton's  note  first  i>rcsenting  the  subject,  that  a  very  brief  suin- 
niary  will  sutlice  for  my  i)resent  purpose. 

"John  H.  Tunstall,  a  British  subject,  domiciled  in  Liucola  County', 
in  the  Territory  of  New  Mexico,  where  he  carried  on  business  as  a  ranch 
proprietor,  is  alleged  to  have  been  the  partner  of  one  Alexander  A. 
McSween,  against  whose  property  writs  of  attachment  had  issued  in  a 
local  suit.  The  sheriff' of  Lincoln  County,  Mr.  Brady,  sent  his  deputy 
sheriff,  Mr.  Matthews,  to  I\rr.  Tunstall's  ranch  to  attach  certain  stock 
and  horses  there  as  coming  under  the  decree  of  the  court.  Mr.  Tun- 
stall appears  to  have  admitted  the  service  of  the  writ,  and  informed  the 
deputy  sheriff'  that  he  could  attach  the  stock  and  leave  a  person  in  charge 
thereof  until  the  courts  should  adjudicate  the  ownership  as  between  Mr. 
McSween  aud  Mr.  Tunstall.  The  deputy  sheriff'  did  not  in  fact  then 
attach  the  property  found  at  Mr.  Tunstall's  ranch,  aud  departed,  as 
would  appear,  for  the  purpose  of  assembling  a  numerous  posse,  with 
which  he  returned  to  the  ranch.  Mr.  Tunstall  meanwhile  had  collected 
the  stock  and  horses  and  with  them  quitted  the  ranch,  going  in  the  di- 
rection of  the  county-town,  Lincoln.  The  deputy  sheriff'  deputized  one 
W.  Morton,  with  eighteen  men  of  the  posse,  to  follow  Mr.  Tunstall, 
with  orders  to  seize  the  horses.  After  a  pursuit  of  some  30  miles,  Mor- 
ton and  his  party  overtook  Mr.  Tunstall  aud  the  horses.  What  then 
occurred  has  not  been  developed  by  judicial  proofs,  but  it  is  alleged  on 
the  part  of  Her  Majesty's  Government  that  Morton's  party  opened  fire, 
that  Mr.  Tunstall  abandoned  the  horses  and  sought  safety  in  flight,  and 
that  he  fell  when  he  had  ridden  about  100  yards  away,  shot  by  two  bul- 
lets in  the  head  and  breast. 

"  It  is  stated  bj'^  a  special  agent  of  the  Department  of  Justice  who 
investigated  the  case  '  that  Morton,  Jesse  Evans,  and  Hill  were  the  only 
persons  who  saw  the  shooting,  and  that  two  of  these  three  persons 
murdered  him  '  [Tunstall].  Of  these  persons,  Morton  and  Hill  were 
afterwards  killed,  and  there  is  no  knowledge  that  the  survivor,  Jesse 
Evans,  has  been  brought  to  justice  for  his  complicity  in  the  murder  of 
Mr.  Tunstall. 

"Upon  this  statement  of  facts,  for  which  we  are  dependent  in  great 
part  on  the  report  of  the  special  agent  of  the  Department  of  Justice, 
who  further  alleges  that  the  members  of  the  pursuing  party  were  at  per- 
sonal enmity  with  Mr.  Tunstall,  Her  Majesty's  Government  claims,  in 
brie^,  that  the  sheriff  of  Lincoln  County,  New  Mexico,  acting  through 
his  deputy,  and  he  in  turn  through  the  subdeputized  leader  of  the  pur- 
suing party,  Morton,  is  accountable  for  a  murder  committed  in  the  exe- 
cution of  a  i)rocess  of  law,  and  that  the  father  of  the  murdered  man, 
having  a  pecuniary  interest  in  the  life  of  his  sou,  based  on  the  business 
operations  carried  on  by  him,  has  a  right  to  recover  indemnity  from  the 
Government  of  the  United  States,  whose  agent  the  sheriff  is  asserted 

680 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§241. 

to  have  beeu.    The  actual  preseutmeut  of  this  claim  for  iudeamitj'  is 
thus  made  in  Sir  Edward  Thorntou's  note  of  June  23,  1880. 

"  It  appears  tLat  Mr.  J.  P.  Tunstall  lias  it  not  in  his  power  to  recover  damages  from 
the  Territorial  Government  of  New  Mexico  by  proceedings  at  law  or  otherwise.  A 
cit'zen  of  the  United  States  would  in  a  similar  case  probably  appeal  to  Congress;  but 
this  remedy  is  not  open  to  an  alien.  Earl  Granville  has  therefore  instructed  me  to 
present  to  the  Government  of  the  United  States  a  claim  on  behalf  of  the  father,  Mr. 
J.  P.  Tunstall,  for  such  compensation  as  upon  examination  of  the  injury  and  losses 
sustaiaed  may  be  found  to  meet  the  justice  of  the  case. 

"  It  seems  unnecessary,  in  this  review  of  the  facts,  to  summarize  the 
allegations  upon  which  much  of  the  correspondence  hinges,  that  Mr. 
Tunstall,  by  his  honest  and  fearless  course  in  New  Mexico,  during  his 
domicil  there,  had  incurred  the  enmity  of  Sheriff  Brady  and  of  men 
who  were  joined  to  the  posse  which  pursued  and  murdered  him,  and  that 
the  sheriff,  by  his  laxity  in  following  up  the  alleged  murderers,  has 
demonstrated  his  sympathy,  if  not  his  connivance,  with  them. 

"These  allegations,  which,  if  judicially  substantiated,  might  make  a 
strong  case  against  the  guilty  parties,  do  not  modify  the  essential  poiut, 
which  is,  that  the  writ  under  which  the  sheriff  acted  was  issued  in  merely 
civil  process,  against  property  only,  not  against  the  body  of  the  deceased, 
and  that  resistance  to  a  writ  of  this  nature  could  not  call  for  or  warrant 
the  resort  to  such  violence  upon  the  person  of  the  resisting  party  as 
appears  to  have  been  committed.  Killing,  in  personal  malice,  by  an 
officer,  of  a  defendant  in  a  civil  process  in  such  officer's  hands,  such 
killing  being  subsequent  to  the  execution  of  the  writ,  is  as  collateral  to 
the  official  action  of  the  officer  as  would  be  the  commission  of  arson 
against  the  dwelling,  or  rape  of  a  member  of  the  family,  of  the  party 
(defendant)  by  such  an  officer  after  the  civil  process  has  been  served. 
Hence  the  attendant  animus  may  be  left  aside  in  the  consideration  of 
this  case ;  for  the  personal  motive  which  may  prompt  an  agent  to  do  an 
unlawful  act  not  within  the  scope  of  his  agency,  and  entirely  collateral 
to  it,  can  in  no  wise  affect  the  question  of  the  alleged  responsibility  of 
the  principal  for  the  agent's  acts;  unless,  indeed,  it  be  shown  that  the 
])rincipal  shared  in  the  criminal  motive  and  constituted  his  agent  to  the 
end  of  its  accomplishment,  which  allegation  I  do  not  imagine  can  be 
made  against  the  Territorial  government  of  New  Mexico  or  the  Govern- 
ment of  the  United  States. 

"With  the  correspondence  between  Sir  Edward  Thornton  and  my  pre- 
decessors in  office  touching  the  position  of  Her  Majesty's  Government 
that  this  Government  is  liable  for  lawless  acts  committed  by  individuals 
charged  with  the  execution  of  legal  process  within  the  United  States, 
you  are  of  course  familiar.  You  will  recall  the  suggestion  made  to 
yourself  by  Mr.  Frclinghuysen,  January  30,  188L',  to  refer  the  Tunstall 
cliiini,  ntidcr  aiilliorization  of  Congress,  to  the  Court  of  Claims  or  other 
judicinl  resort,  ;ind  the  rejection  of  that  suggestion  by  Her  Majesty's 
Oovci  iiiiiciit,  bec;iu«(',  the  |)r()pose<l  adjudication  would  not  be  based  on 

081 


§211.]  CLAIMS.  [chap.  IX. 

a  juior  admissiou  of  tlio  liability  of  tlie  United  States  in  the  premises 
subject  to  the  facts  being  established  after  judicial  incjuiiy.  You  will 
also  recall  your  communication  to  Mr.  Frelinghuysen,  under  date  of 
June  30, 1882,  of  Earl  Granville's  intimation  of  'the  hope  of  Her  IMnjes- 
ty's  Government  that  the  Government  of  Mie  United  States  will  be  able 
to  meet  their  views  in  this  long  pending  case,  and  to  suggest  some 
other  mode  of  disposing  of  it.' 

"^Vith  that  intimation  discussion  of  the  matter  came  to  a  halt,  and  I 
can  readily  understand  the  inability  of  my  predecessor  '  to  suggest  any 
other  mode  of  disposing  of  it.'  In  fact,  I  can  quite  confidently  surmise 
jNIr.  Frelinghuyseu's  conviction  that,  in  suggesting  the  domestic  sub- 
mission of  the  merits  of  the  case  to  a  quasi-judicial  resort,  including 
in  such  submission  the  fundamental  question  of  national  liability,  the 
executive  had  strained  to  the  uttermost  any  possible  concei)tion  of  its 
discretion  in  the  premises.  For  such  a  forum,  being  necessarily'  of 
domestic  institution,  and  possessing  no  international  jurisdiction  or 
power  to  enforce  its  conclusions,  could  only  be  properly  regarded  as  an 
advisory  body,  entitled  to  respect  by  reason  of  its  evident  moral  compe- 
tency and  impartiality,  and  the  submission  thereto  of  the  point  at  issue 
could  only  be  deemed  a  voluntary  and  temporary  delegation  of  a  func- 
tion of  decision  inlierent  in  the  national  sovereignty. 

"It  is  not  necessary,  in  giving  a  final  answer  to  the  questions  presented 
by  Her  Majesty's  Government  in  this  case,  to  recapitulate  the  positions 
taken  by  Mr.  Evarts  in  his  note  to  Sir  Edward  Thornton  of  ]\Iarch  7, 
18S1.  Waiving,  in  the  present  discussion,  the  positions  so  taken,  the 
first  question  that  meets  us  on  the  examination  of  the  claim  is  as  to 
the  liability  of  the  Government  of  the  United  States  for  the  debts  or 
torts  of  officers  of  a  Territory  organized  under  Congressional  legislation. 
That  the  United  States  Government  is  not  so  liable  has  been  more  Hian 
once  held  by  courts  in  the  United  States. 

"The  very  question,  however,  of  such  liability  was  adjudicated  by  the 
joint  commission  appointed  under  the  convention  of  February  8,  1853, 
for  the  adjustment  of  claims,  then  unsettled,  preferred  by  citizens  of  the 
United  States  against  Great  Britain  and  by  subjects  of  Great  Britain 
against  the  United  States.  The  commissioners  were  Mr.  Upham,  on 
the  part  of  the  United  States,  and  IMr.  Ilornley,  on  the  i)art  of  Great 
Britain.  The  commissioners  met  in  London,  on  September  15,  1853, 
and  chose  Mr.  Bates,  of  London,  as  umpire.  Among  the  claims  pre- 
sented was  one  by  British  subjects,  based  on  bonds  issued  by  the  Ter- 
ritory of  Florida  before  the  admission  of  Florida  as  a  State. 

"The  case  was  argued  on  behalf  of  the  claimants  by  Messrs.  Holt, 
Cairns,  and  Uannen,  who  afterwards  acquired  great  eminence  on  the 
bench,  and  by  Mr.  Thomas  as  agent  and  counsel  for  the  United  States. 
The  claim  was  based  on  the  assumption  that,  as  Congress  could  remodel 
or  veto  Territorial  legislation,  the  Government  of  the  United  States  was 
liable  for  the  conduct  of  Florida  creating  indebtedness  to  a  subject  of 
682 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§241. 

Great  Britain.     Mr.  Bates,  however,  as  umpire,  dismissed  tliis  position 
summarilj',  saying: 

"The  first  ground  of  claim  [that  above  stated]  uecd  hardly  be  treated  seriously ;  it 
might  as  well  be  contended  that  the  Bi'itish  Government  is  responsible  for  Cauada's 
debentures,  because  all  the  acts  passed  by  the  Canadian  Parliament  require  the  sanc- 
tion of  the  home  Government  before  they  become  laws.  (Proceedings  of  the  Joint 
Commission,  Washington,  1855.) 

"If  the  British  contention  in  the  present  case  be  good,  then  the  British 
Government  would  be  liable,  not  only  for  the  debts  of  Canada,  but  for 
the  torts  of  all  the  officers  of  Canada. 

"  Such  a  position,  it  is  now  submitted,  is  not  merely  in  conflict  with 
the  political  basis  on  which  rests  the  colonial  system  of  Great  Britain, 
but,  the  case  being  reversed,  is  in  like  conflict  with  the  Constitution  of 
the  United  States.  On  Great  Britain,  in  fiict,  the  doctrine  of  the  liability 
of  the  sovereign  for  the  torts  or  debts  of  dependencies  over  which  he 
has  a  general  restrictive  control  would  operate  far  more  seriously  than 
on  the  United  States,  since  it  would  make  Her  Majesty's  Government 
liable  for  the  misconduct  of  local  oflicials,  not  merely  in  Canad;i,but  in 
India,  in  Australia,  in  South  Africa,  and  in  Egypt. 

"  But  it  is  not  desired  to  rest  our  resistance  to  this  claim  exclusively 
on  the  above  position.  Appealing  to  princix)les  acknowledged  in  com- 
mon in  England  and  in  the  United  States,  it  is,  in  addition,  maintained 
that  in  countries  subject  to  the  English  common  law,  where  there  is  the 
opportunity  given  of  a  prompt  trial  bj'  a  jury  of  the  vicinage,  damages 
inflicted  on  foreigners  on  the  soil  of  such  countries  must  be  redresiied 
through  the  instrumentality  of  courts  of  justice,  and  are  not  the  sub- 
ject of  diplomatic  intervention  by  the  sovereign  of  the  injured  part3\ 

"  The  i^osition  thus  stated  finds  mixny  illustrations  in  the  history  of 
the  diplomatic  relations  of  Great  Britain  and  of  the  United  States. 
Prior  to  the  occurrences  now  under  consideration  there  must  have  been 
many  cases  in  which  British  subjects  supposed  that  they  had  suffered 
loss  through  the  negligence  or  the  malice  of  subordinate  officers  of  the 
different  States  and  Territories  composing  this  Union,  but  no  record 
can  be  found,  at  least  on  the  files  of  this  Department,  of  cases  in  which, 
when  redress  could  be  had  by  appeal  to  local  courts  of  justice,  an  attempt 
has  been  made  to  substitute  for  such  redress  a  demand  upon  the  Gov- 
ernment of  the  United  States  for  i)ecuniary  compensation.  The  same 
may  be  said  of  the  many  cases  in  whicli  citizens  of  the  United  States 
may  have  suffered,  or  claim  to  have  suffered,  injury  in  Great  Britain 
from  tlie  conduct  of  British  oflicials.  When  such  injury  was  inflicted 
npon  the  high  seas,  or  in  Ibreign  uncivilized  lands,  and  especially  if  in- 
flicted by  the  armed  military  or  naval  power  directly  emanating  from 
the  sovereign  executive,  llien  it  was  [jroperly  regarded  as  (he  subject 
of  diplomatic  inteiveni  ion  ;  but  a  careful  search  in  the  records  of  this 
Department  discloses  no  diplomatic  appeal  for  i)ecuniary  compensation 
for  injuries  claimed  to  liav(!  been  iiillicteil  or)  American  citizens  when 
on  the  soil  of  Great  Britain. 

GS3 


§241.]  CLAIMS.  [CIIAP.  IX. 

"  As  showing  tbe  strictness  with  which  this  distinction  is  niaintaiuetl 
may  be  mentioned  the  case  of  Mr.  Henry  George,  a  citizen  of  the  United 
States,  distinguished  as  a  man  of  letters  and  as  a  lecturer,  who  traveled 
in  Ireland  in  1882.  Mr.  George,  as  was  afterwards  fully  shown  and 
conceded,  was  in  no  way  concerned  in  any  seditious  or  other  illegal  pro- 
ceedings against  the  peace  of  Great  Britain,  and  there  was  no  evidence 
produced,  either  at  the  time  or  since,  which  suggested  the  faintest jpr/wa 
facie  case  to  justify  arrest.  He  was,  however,  arrested  atLoughrea,  on 
August  8,  1882,  without  warrant,  by  governmental  subordinates,  his 
baggage  searched,  his  letters  and  papers  ransacked,  and  his  person 
treated  with  indignity.  He  was  discharged,  on  the  ground  that  there 
was  no  case  against  him,  and  i)rocecded  on  his  journey,  occupied  in 
part  in  visiting  the  antiquities  and  other  interesting  features  of  the 
country.  Two  days  afterwards,  at  Athenry,  a  few  miles  distant  from 
Loughrea,  when  about  entering  on  the  train  for  Galway,  he  was  again 
arrested,  his  baggage  again  searched,  his  papers  again  inspected,  while 
he  was  kept  until  midnight  a  close  prisoner  by  the  same  magistrate  who 
had  examined  and  discharged  him  at  Loughrea.  lie  was  again  dis- 
charged for  the  same  reason  that  no  case  existed  against  him,  although 
this  should  have  been  as  fully  known  by  the  magistrate  at  the  time  of 
the  second  imijri.'^onmeut  as  at  the  time  of  the  first  discharge. 

"  The  question  of  the  amount  of  pecuniary  compensation  to  which  Mr. 
George  would  have  been  entitled  in  a  court  of  justice  is  not  now  ma- 
terial. So  far  as  concerns  the  principle,  it  makes  no  matter  whether 
the  injury  inflicted  on  hiui  touched  his  life,  or  merely  his  liberty  and 
the  sanctity  of  his  property  for  a  few  hours.  And,  so  far  as  concerns 
this  principle,  it  is  worthy  of  notice,  in  this  relation,  how  clearly  the 
question  of  liability'  is  defined  by  Mr.  Frelinghuysen  in  his  instruction 
to  Mr.  Lowell  of  October  3,  1882  : 

"  '  While  citizens  of  tbe  United  States  traveling  or  resident  abroad  arc  subject  to  the 
reasonable  laws  of  tbe  country  in  wbicb  tbey  may  be  sojourning,  it  is,  nevertheless, 
their  right  to  be  spared  such  indignity  and  mortification  as  the  conduct  of  the  offi- 
cers at  Loughrea  and  Athenry  seems  to  have  visited  upon  Mr.  George.  *  *  *  As 
you  have  already  addressed  a  note  to  Lord  Granville  on  this  subject,  a  reply  will 
probably  soon  be  received  by  you.  It  is  trusted  that  the  tenor  of  that  reply  may 
prove  satisfactory  to  this  Government,  and  also  relievo  Mr.  George  from  any  reproach 
the  arrests  are  calculated  unjustly  to  cast  upon  him.'     (See  supra,  $  230.) 

"It  will  be  observed  that  there  is  here  no  claim  whatever  for  jiecuniary 
compensation  to  Mr.  George.  That  claim,  it  is  tacitly  assumed,  is  to  be 
remitted  to  British  courts  of  justice.  The  request  is  for  explanation  to 
the  Government  of  the  United  States  and  exoneration  of  Mr.  George 
from  'reproach.'  Yet  the  arrest  of  Mr.  George,  and  that  of  other 
'suspects'  under  the  recent  crimes  act,  was  not,  it  must  be  remem- 
bered, in  the  course  of  the  English  common  law.  Tliere  was  apparently 
no  responsible  prosecutor,  there  was  no  hearing  in  which  witnesses 
could  be  met  face  to  face,  and  consequently,  under  the  cover  of  a  legisla- 
tive enactment  for  the  time  being,  the  sufferer  was  denied  all  oppor- 
C84 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§  241. 

tuuity  to  establish  the  possible  malice  of  the  allegatiou  which  led  to  his 
arrest,  or  to  identify  the  secret  accuser  who  could  therefore  with  im- 
punity wound  his  sensibilities  and  subject  him  to  serious  distress  and 
suffering.  Had  there  been  a  commitment,  it  would  not  have  been  in 
view  of  a  speedy  jury  trial.  Under  these  circumstances,  the  case  would 
not  have  f\illen  under  the  rule  announced  above,  that  where  a  foreigner 
claiming  to  be  injured  has  redress  by  an  appeal  to  the  courts  in  the 
processes  of  the  English  common  law,  a  diplomatic  demand  for  indem- 
nity will  not  be  granted  by  the  Government  of  the  country  in  which  the 
injury  is  claimed  to  have  beeu  received,  yet,  even  in  the  case  of  Mr. 
George  and  other  citizens  of  the  United  States  put  recently  without 
probable  cause  under  summary  arrest  in  Ireland,  we  hear  of  no  demand 
made  by  the  Government  of  the  United  States  for  pecuniary  compensa- 
tion. 

"The  reason  why,  in  countries  subject  to  the  English  common  law, 
the  question  of  compensation  to  foreigners  for  injuries  received  on  the 
soil  of  such  countries  is  exclusively  committed  to  the  courts  of  justice 
in  the  place  of  the  injury,  is  to  be  found  in  two  conditions: 

"The  lirst  is,  that,  as  has  been  alreatly  noticed,  the  party  injured  has 
the  advantage  by  that  law  of  a  prompt  trial  by  an  impartial  jury  drawn 
from  the  vicinage,  under  the  supervision  of  judges  whose  integrity, 
whether  it  be  in  England  or  in  the  United  States,  has,  viewing  them 
as  a  body,  never  been  impeached,  and  who  are  subject  to  established 
and  impartial  rules  of  law.  The  second  condition  is,  that,  by  the  En- 
glish common  law,  foreigners,  when  appealing  to  courts  of  justice,  have 
equal  rights  with  subjects.  It  is  not  so  in  other  systems  of  jurispru- 
dence; and  it  is  natural,  therefore,  that  under  such  other  systems  of 
jurisprudence  the  appeal  of  a  foreigner  for  compensation  should  lie,  not 
to  the  courts  which  impose  upon  him  unjust  discriminations,  but  through 
his  own  sovereign  to  the  sovereign  of  the  country  in  which  the  injury 
has  been  received.  But  in  countries  subject  to  the  English  common 
law,  every  facility  which  is  given  to  a  subject  when  approaching  a  court 
of  justice  is  given  to  a  foreigner  making  such  approach. 

"It  is  impossible  to  study,  in  particular,  the  annals  of  English  juris- 
prudence without  being  struck  with  the  delicate  and  honorable  con- 
scientiousness with  which  the  rights  of  foreigners  in  this  relation  have 
been  maintained.  If,  in  such  cases  before  the  English  tribunals,  there 
has  been  any  appeal  to  generosity  and  sympathy,  this  has  not  been  in 
favor  of  the  subject  against  the  foreigner.  Nor  has  it  made  any  ditler- 
ence  that  the  party  sued  by  the  foreigner  was  an  officer  of  the  Govern- 
ment. 

"Numerous  cases  of  this  kind,  wlicre  the  plaintiff  was  a  foreigner 
and  the  defendant  an  officer  by  whom  he  was  assaulted,  or  falsely  im- 
prisoned, or  maliciously  jjrosecuted,  are  reported  in  the  English  books, 
and  in  no  one  of  these  cases  can  it  be  aUcgcil  tliat  justic(;  was  not  meted 
to  the  foreign  plaintiff  as  freely  as  if  lie  liad  been  a  i5iitish  subject.     It 

C85 


§  241.]  CLAIMS.  [chap.  IX. 

is  witL  some  pride,  also,  that  it  may  be  declared  by  this  Department 
that  throughout  the  Uuited  States  the  same  impartial  Justice  is  admin- 
istered. Even  beyond  this,  in  its  scrupulous  protection  of  the  rights 
of  foreigners,  has  our  peculiar  jurisi)ru(kMice  gone,  A  citizen  of  one 
of  our  States,  injured  in  isuch  State  by  a  person  resident  therein,  is,  in 
ordinary  cases,  limited  to  the  State  courts  for  redress.  A  foreigner 
suing  in  such  State  is  given  the  election  between  the  State  courts  and 
the  district  courts  of  the  United  States. 

"The  practical  result  of  this  fair  dealing  is  even  more  marked  in  this 
country  than  in  England.  There  are  reported  in  our  books  multitudes 
of  cases  in  which  local  ollicers  of  justice  have  been  sued  by  foreigners 
in  our  courts  for  false  imprisonment  or  for  nuilicious  prosecution  or  for 
assault,  and  this  must  needs  be  the  case  in  communities  like  ours,  in 
which  a  large  proportion  of  the  population  consists  of  foreigners  unfa- 
miliar with  our  laws. 

"In  not  one  of  these  cases,  however,  has  it  ever  been  maintained 
that  the  foreign  plaintiti'  had  not  at  least  the  same  privileges  awarded 
to  him  as  he  would  have  had  if  he  had  been  a  native  citizen,  nor  can 
the  most  jealous  scrutiny  of  the  proceedings  show  in  a  single  case  any 
misstatement  of  law  to  bis  disfavor.  The  first  instance,  in  fact,  in 
which,  instead  of  an  apjeal  to  the  courts  thus  open,  diplomatic  inter- 
vention through  a  sovereign  is  urged,  is  that  which  we  now  have  to 
discuss. 

"  Sir  Edward  Thornton,  in  his  note  to  Mr.  Blaine,  of  June  10,  1881, 
took  exception  to  the  position  attributed  to  Mr.  Evarts  that  the  laws 
of  the  Territories,  like  the  laws  of  the  States  of  the  Union,  are  to  be 
administered  bj-  the  respective  tribunals  and  officers,  free  from  any  con- 
trol or  interference  of  the  Federal  Government;  but  those  exceptions 
were  advanced  equally  on  the  hypothesis  that  the  acts  charged  might 
have  been  committed  in  a  State  of  the  Union,  in  which  case,  as  I  un- 
derstand Sir  Edward's  presentation  of  Lord  Granville's  argument,  Her 
Majesty's  Government  would  Lave  claimed  that  the  Federal  responsi- 
bility still  accrued.  Without  recapitulating  the  position  set  up  by  Mr. 
Evarts,  in  technical  bar  of  this  claim,  and  without  in  any  degree  w^aiv- 
ing  the  position  with  which  this  note  sets  out,  that  the  Government  of 
the  United  States  is  not  and  cannot  be  liable  for  the  torts  or  contracts 
of  the  Territories,  it  must  be  remembered  that  New  ]\Iexico  possesses 
a  duly  perfected  political  organization,  which,  under  the  Federal  Gov- 
ernment, includes  the  executive  and  judicial  dei)artments  existing  side 
by  side  as  co-ordinate  yet  independent  powers,  and  that,  in  the  courts 
of  Xew  Mexico,  foreigners  have  the  same  rights  of  redress  as  citizens. 

"The  fact  that  the  authority  of  those  departments  emanates  equally 
as  to  both  from  the  Federal  Government,  is  no  reason  why  either  should 
not  be  regarded  as  sole  and  supreme  in  ite  particular  functions,  or  why 
matters  belonging  to  the  judicial  dei)artment  of  the  Territory  should  be 
taken  under  control  and  determined  upon  by  the  Federal  executive 
G8G 


CHAP.  IX.]  WHEN    REMEDY    IS    JUCICIAL.  [§241. 

acting  eitlier  directly  or  tbrougli  the  Territorial  governor.  For  the  Fed- 
eral executive  to  take  the  case  out  of  the  control  of  the  judicial  branch 
would  at  once  be  to  abrogate  the  constitutional  distinction  between 
the  executive  and  the  judiciary,  and  be  manifestly  an  usurpation  by  the 
executive  of  a  jurisdiction  distinctively  judicial,  by  so  arrogating  to 
itself  a  function  exclusively  delegated  to  the  courts.  It  is  impossible 
to  see  how  this  could  be  doue  in  the  present  case,  for  the  avowed  pur- 
pose of  creating  in  favor  of  a  foreigner  a  resort  other  than  and  different 
from  that  which  he  i-ossesses  in  common  with  native  citizens,  without 
violating  essential  constitutional  distinctions  and  at  the  same  time 
tlirowing  unmerited  discredit  on  our  local  judicial  system  and  departing 
from  an  unbroken  line  of  precedents,  which  by  themselves  have  become 
a  law. 

"That  when  the  courts  of  justice  are  open  to  a  foreigner  in  a  State, 
the  Federal  executive  will  not  take  cognizance  of  his  complaint,  was 
maintained  by  Mr.  Evarts  and  Mr.  Blaine,  on  December  30,  18S0,  and 
March  25,  1881,  when  declining  to  accept  for  the  executive  jurisdiction 
over  a  claim  for  damages  to  certain  Chinese  inflicted  by  a  mob  in  Colo- 
rado in  November,  18S0.  (U.  S.  For.  Eel.,  1881,  319,  335.)  Tiie  same 
position  was  taken  by  Mr.  Webster,  in  his  note  of  November  13,  1851, 
to  Air.  Calderon  de  la  Barca,  who  made  claim  for  damages  sustained 
by  the  Spanish  consul  and  Spanish  citizens  from  a  mob  in  New  Orleans, 
iu  the  preceding  month.  It  was  agreed  that  reparation  should  be  made 
to  the  consul,  on  the  ground  of  his  public  character.  It  was  otherwise, 
Mr.  Webster  maintained,  as  to  Spanish  citizens.  '  Private  individuals,' 
he  said,  '■  subjects  of  Her  Catholic  Majesty  coming  voluntarily  to  reside 
in  the  United  States,  have  certainly  no  cause  of  complaint,  if  they  are 
protected  by  the  same  law  and  the  same  administration  of  the  law  as 
native-born  citizens  of  this  country.'  And,  resting  in  like  manner  on 
the  position  that  the  executive  cannot,  within  its  constitutional  func- 
tion, invade  the  functions  of  the  judiciary,  this  conclusion  applies  as 
fully  to  a  Territory  as  it  does  to  a  State,  and  was  reached  by  Mr.  Butler, 
Attorney-General  during  ]\Ir.  Van  Buren's  administration,  in  a  letter  to 
the  President,  dated  July  5,  1837.     (3  Op.,  253.) 

"The  principle  is  therefore  to  be  regarded  as  adjudicated  and  estab- 
lished by  the  liighest  international  and  domestic  authority  in  accordance 
with  the  enunciation  above  given. 

"  It  is  interesting  to  observe  that  in  England  the  same  demarkation 
between  executive  and  judicial  functions  has  been  preserved  under  cir- 
cumstances not  unlike  the  deplorable  case  nOw  brought  before  us.  In 
1780,  in  a  riot  directed,  in  a  large  measure,  against  foreigners  of  the 
liomanCatholie  faith,  the  pn)i)erty  and  persons  of  such  foreigners  were 
siibj('ctc(l  to  jitrocious  outrages,  yet  no  instance  is  reported  of  appeals 
by  th(;  sovt-rcigus  of  these  foyci^^iicrs  to  the  British  Crown  for  rciiiu- 
n(!ration.  ^JMu;  vaiious  riots  whic-Ii,  dining  Lord  JjiNcipoors  :i<liiiini.slni- 
tioi),  were  iiK'itcd  for  llic  piiiiK),s(;  or<lriviiig  off  foicigii  citi/ciis  and  (h'- 

G87 


§  241.]  CLAIMS.  [chap.  IX. 

stioyiug  their  luacliiuery,  were  not  followed,  as  far  as  we  eau  learn,  by 
any  diplomatic  action  for  the  pecuniary  remuneration  of  the  parties  in- 
jured; tliou<;ii  we  are  informed,  by  the  records  of  the  courts,  of  prose- 
cutions by  which,  in  the  ordinary  courts  of  justice,  the  perpetrators  of 
those  wrongs  were  punished. 

"And  in  ISoO,  the  distinction  before  us  was  enunciated  by  the  British 
Government  under  circumstances  of  peculiar  interest.  On  September 
•4  of  that  year,  General  Hayuau,  an  Austrian  officer,  who,  whatever  may 
have  been  his  severity  as  a  commaiuler  in  the  civil  war  in  which  Aus- 
tria had  been  engaged,  was  nevertheless  a  distinguished  representative 
of  a  country  with  w^hich  Great  Britain  was  then  at  peace,  visited,  with 
two  of  his  aids,  the  brewery  of  Messrs.  Barclay,  Perkins  &  Co.,  then 
one  of  the  famous  objects  in  London,  which  strangers  were  accustomed 
to  inspect.  General  Haynau  was  charged  with  no  indecorum  in  his 
visit.  It  became  known,  however,  to  the  porters  and  other  workmen, 
who  he  was,  and  he  was  subjected  to  what  Lord  ralmerston,  in  his 
note  in  reply  to  Baron  Koller's  demand  of  investigation,  admits  to  have 
been  'outrageous  violence  and  insult.'  (Viscount  Palmerston  to  Baron 
KoUer,  September  14,  1850,  42  Brie,  and  For.  St.  Pap.,  389). 

"  To  the  demand  of  the  Austrian  minister  for  executive  intervention, 
however,  the  answer  was,  *  that  no  proceedings  can  be  taken  in  this 
case  which  are  not  in  accordance  with  the  ordinary  administration  of 
law.'  If  a  civil  suit  was  to  be  brought,  it  was  intimated  General  Ilay- 
nau  must  bring  it;  if  a  criminal  prosecution  for  assault  was  to  be  insti- 
tuted General  Ilaynau  must  appear  as  i)rosecutor ;  and  as  General 
Haynau  did  not  desire  to  take  such  a  resi^onsibility,  no  redress  at  all 
was  given.  The  case  was  an  extreme  one.  The  attack  had  no  color  of 
excuse.  The  party  attacked  was  an  aged  man,  at  the  time  defenseless, 
an  eminent  servant  of  the  Austrian  Crown,  who,  if  any  person  not  a  for- 
eign ambassador  could  properly  appeal  for  diplomatic  intervention, 
could  make  such  an  appeal.  The  outrage  was  offered  in  such  a  shape 
as  to  make  it  an  offense  against  the  Austrian  sovereign  under  whose 
orders  General  Haynau  had  acted  in  the  matters  which  had  provoked 
the  indignation  of  the  workmen  at  the  brewery.  Yet,  even  in  this  ex- 
treme case,  the  British  Government  laid  down,  and  laid  down  properly, 
the  rule  that  for  injuries  inflicted  on  a  foreigner  on  English  soil,  redress 
must  be  sought,  not  from  the  executive,  but  from  the  courts.  And  this 
rule  is  not  affected  by  the  circumstance  that  it  does  not  appear  that 
any  agents  of  the  civil  authority,  whether  in  the  exercise  at  the  time  of 
civil  functions  or  not,  were  participants  in  the  acts  of  outrage  com- 
plained of,  for  those  acts  could  not  have  been  deemed  in  any  case  to 
have  fallen  within  the  scope  of  their  agency. 

"Undoubtedly,  as  is  stated  by  Sir  Edward  Thornton,  'the  citizens 
of  the  different  States  of  the  Union  would  be  entitled  to  recover  com- 
pensation for  lawless  acts  committed  under  the  like  circumstances  to 
those  that  have  occurred  in  ISTew  Mexico.'    (Sir  Edward  Thornton  to 
G88 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§  241. 

Mr.  Blaine,  June  10.  1881.)  But  this  must  be  by  an  appeal,  not  to  the 
executive,  but  to  the  courts;  and  the  precedent  just  noticed  is  made 
stiU  more  impressive  from  the  fact  that  the  outrage  was  committed,  not 
in  a  wild,  remote,  and  newly-settled  country,  but  in  the  metropolis  of 
the  realm,  at  the  center  of  the  executive  and  judicial  systems  of  Great 
Britain,  and  under  the  supervision  of  an  aniple  and  well-disciplined 
police. 

"  To  accept  the  position  of  the  British  Government  in  this  matter 
would,  moreover,  lead  to  utter  confusion  in  the  constituted  arrange- 
ments of  our  system,  which,  like  that  of  England,  sedulously  maintains 
the  executive,  judicial,  and  legislative  departments  distinct  from  each 
other. 

"The  claim  now  put  forward,  if  allowed,  would  usurp  judicial  func- 
tions by  the  executive  and  legislative  branches,  and  would  substitute 
a  government  of  will  for  a  government  of  law.  Private  loss  and  injury 
ensue  from  temporary  disorders  and  breaches  of  the  peace  under  any 
Government.  To  cite  a  recent  instance  near  at  hand,  in  1878  three 
thousand  loaded  railway  cars  were  destroyed  by  a  mob  at  Pittsburgh, 
in  Pennsylvania.  For  this  loss,  suits  were  brought  in  the  courts  of  law 
against  the  municipality  of  Pittsburgh  and  judgment  recovered.  The 
city  applied  to  the  State  by  petition,  and  the  legislature  passed  an  act 
to  reimburse  the  city.  Whether  any  of  the  litigants  against  the  mu- 
nicipality were  British  subjects  does  not  appear,  but  if  there  had  been 
such,  their  claims  would  have  been  heard  and  decided  the  same  as  if 
they  had  been  citizens  of  the  United  States.  Ko  person  who  lost  his 
property,  nor  the  relatives  of  any  who  lost  his  life — and  many  lives 
were  lost — ever  pretended  to  hold  the  United  States  Government 
responsible. 

"  Under  no  aspect  of  the  case  is  there  any  right  under  our  law  to 
redress  such  injuries  as  Mr.  Tunstall  suffered,  which  is  not  as  open  to 
a  foreigner  lawfully  within  the  United  States  as  to  any  one  of  our  own 
citizens.  There  is  no  discrimination  between  them  in  the  forum  in 
which  all  such  claims  are  to  be  heard  and  decided,  and  that  sole  forum 
is  provided  in  the  courts  of  justice. 

"  The  injury  complained  of  is  a  personal  tort,  founded  as  would  ap- 
pear from  the  allegations  contained  in  the  statements  submitted  on  be- 
half of  your  Government,  on  personal  motives  of  malice  and  viudic- 
tiveness  in  the  breasts  of  the  aggressors.  For  such  a  tort  the  guilty 
party  may  be  properly  pursued  and  punished.  But  it  was  not  an  act 
of  the  Government.  It  was  executed  neither  by  its  orders,  nor  in  any 
way  for  its  benefit,  but,  on  the  contrarj'^,  in  opposition  to  its  laws  and 
in  violation  of  its  peace  Aside  from  other  considerations,  the  doctrine 
of  agency  would  wliolly  refute  such  a  claim,  for  tlie  rule  of  respondeat 
xuperior  does  not  in(;lude  aTjts  of  disobedience  to  tlie  snix'rior  and 
wholly  outside  the  scope  of  the  agency. 

S.  Mis.  HiJ— voT,.  IF 11  GSO 


^  241.]  CLAIMS.  [chap.  IX. 

"Tbo  propositions  hereinbefore  stated  are  abundantly  sustained  by 
au  eminent  English  publicist,  as  highly  esteemed  in  this  country  as  in 
Enghind,  whose  recent  decease  is  so  greatly  mourned.  '  The  state,'  says 
Sir  R.  Phillimore  (2  Int.  Law,  4), '  must  be  satisfied  that  its  citizen  has 
exhausted  the  means  of  legal  redress  olieied  by  the  tribunals  of  the 
country  in  which  he  has  been  injured.  If  these  tribunals  are  unable  or 
unwilling  to  entertain  and  adjudicate  upon  his  giievance  the  ground  for 
interference  is  fairly  laid. 

"'But  it  behooves  the  interfering  state  to  take  the  utmost  care,  first, 
that  the  commission  of  the  wrong  bo  clearly  established;  secondly, 
that  the  denial  of  the  local  tribunals  to  decide  the  question  at  issue  be  no 
less  clearly  established.  It  is  oulj"  after  these  propositions  have  been 
irrefragably  proved  that  the  state  of  a  foreigner  can  demand  repara- 
tion at  the  hands  of  the  Government  of  his  country.' 

"This  position  is  thus  atlirmed  by  Chief  Justice  Waite  in  the  case  of 
New  Ilampshire  v.  Louisiana  (108  U.  S.,  90): 

"There  is  no  principle  of  international  law  vrbich  makes  it  tbo  <lnty  of  one  nation 
to  assume  the  collection  of  the  claims  of  its  citizen  against  another  nation,  if  the  cit- 
izens themselves  have  ample  means  of  redress  without  the  intervention  of  their  Gov- 
ernment. Indeed,  Sir  Robert  Phillimore  says,  in  his  Commentaries  on  International 
Law,  vol.  ii,  2d  ed.,  p.  I'i :  '  As  a  general  rule,  the  proposition  of  Martens  seems  to  be 
correct,  that  the  foreigner  can  only  claim  to  be  put  on  the  same  footing  as  the  native 
creditor  of  the  state.' 

"It  is  often  profitable  in  the  discussion  of  international  questions  of 
this  character  to  step  aside  and  to  consider  the  results  which  would 
flow,  in  i)ractice,  from  the  mutual  admission  of  the  point  in  contention. 
So  it  may  be  permissible  to  notice,  although  it  is  unnecessary  to  do  more 
than  merely  notice,  the  great  inconvenience  which  would  follow  the 
adoption  of  a  precedent  such  as  that  now  sought  to  be  established  bj^ 
Her  Majesty's  Government,  and  which  must  be  ])resumed  to  be  intended 
as  mutual  in  the  relations  of  the  two  countries.  Aside  from  the  ques- 
tion of  the  constitutional  barrier  between  the  judicial  and  the  executive 
branches,  it  must  be  remembered  that  in  the  executive  department  there 
is  no  machinery  provided  for  examining  witnesses  or  obtaining  a  jurid- 
ical verdict  on  disputed  facts. 

"  Were  the  proposed  precedent  established,  all  sui»s  or  claims  w^hatever 
in  which  foreigners  are  plaintifls  or  prosecutors  would  be  poured  into 
this  Department.  Not  only  would  the  office  in  charge  of  the  foreign 
intercourse  be  in  consequence  compelled  to  assume  control  over  a  mass 
of  litigation  which  it  has  no  means  of  satisfactorily  managing,  but  the 
dangers  of  complications  with  foreign  powers  would  be  infinitely  in- 
creased. Nor  could  such  an  access  of  business  be  productive  of  less  in- 
convenience and  embarrassment  to  the  British  foreign  office,  and  to 
ourselves  in  dealing  with  that  office.  Heretofore  the  complaints  made 
by  us  to  that  office  for  the  release  of  American  citizens  who  were  im- 
prisoned as  'suspects'  have  been  satisfactorily  adjusted,  since  all  that 
090 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§  241. 

we  have  asked  has  been  a  release,  which  was  the  subject  of  ready  de- 
termiDatlou.  The  issues  would  be  far  different,  and  could  not  fail  to  be 
accompauied  by  much  irritation,  if,  in  such  cases,  by  adopting  the  sug- 
gested precedent,  Her  Majesty's  Government  should  invite  demands  in 
its  executive  capacity  to  pay  the  damages  sustained  bj'  the  parties  im- 
prisoned. And  the  irritation  in  such  a  case  would  not  be  lessened  by 
the  fact,  already  adverted  to,  that  those  arrests  were  made  not  in  sub- 
jection to  English  common  law  precedent,  but  in  defiance  of  such  prece- 
dent, taking  the  case  out  of  the  rule  announced  at  the  beginning  of  this 
note,  which  gives  the  judiciary  exclusive  jurisdiction  when  acting  ac- 
cording to  the  practice  of  the  English  common  law. 

"  In  this  relation,  also,  it  may  be  proper  briefly  to  advert  to  the  bear- 
ing on  this  case  of  the  position  lately  taken  by  the  British  foreign  ofiice, 
that  an  American  citizen,  even  when  passing  transiently  through  the 
British  dominions,  is  bound  by  British  allegiance,  and  required  to  sub- 
mit himself  to  all  the  conditions  of  British  law. 

"  But  Mr.  Tunstall,  in  the  present  case,  was  not,  at  the  time  of  the 
lamentable  occurrence  complained  of,  transiently  passing  through  the 
United  States.  He  had  entered  upon  what  appears  to  have  been  a  i)er- 
raanent  residence  in  New  Mexico,  and  had  engaged  in  a  business  con- 
ditioned on  such  permanency.  If,  as  we  must  infer  from  this,  when  there 
is  no  evidence  to  the  contrary,  he  was  then  domiciled  in  New  Mexico, 
he  was  not  even,  as  far  as  concerns  the  administration  of  the  judicial 
function  there,  a  foreigner,  and,  on  this  issue  alone,  his  representatives 
cannot  appeal  to  the  Government  of  his  established  domicil  through  a 
foreign  sovereign  for  redress.  Their  rights  are  cognizable  only  because 
they  may  be  proved  to  flow  from  the  personal  status  of  the  decedent, 
and  are  therefore  dependent  upon  the  judicial  proceedings  of  the  coun- 
try of  the  decedent's  domicil. 

"  This  is  doubly  clear  when  we  recall  the  statements  made  by  your  pre- 
decessors in  snpjiort  of  the  demand  for  pecuniary  indemnification,  that 
the  father  of  the  decedent  was  a  party  in  interest  in  his  son's  enterprise, 
and  had  advanced  sums  to  aid  in  the  establishment  of  the  business  set 
up  in  New  Mexico.  If  Mr.  Tunstall  died  intestate,  and  left  any  per- 
sonal property  in  New  Mexico,  it  would  pass  under  the  laws  of  that  Ter- 
ritory and  be  distributed  in  accordance  therewith.  And  such  being  the 
law,  based  on  Mr.  Tun.stall's  domicil  in  New  Mexico,  his  representatives 
have,  under  the  law  of  nations,  no  title  to  the  intervention  of  a  foreign 
sovereign. 

"After  a  full  review  of  all  the  facts  and  circumstances  of  the  case,  I 
am  constrained  to  inform  you  that  this  Government  cannot  admit  any 
liability  as  attaching  to  it  in  the  premises,  either  directly  toward  the 
representatives  of  the  murdered  man  or  internationally  toward  Her 
Majesty's  Government  demanding  in  their  behalf." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Went,  Jmio  1,  188.").     MSB.  Nolcs,  Gr.  Brit. ; 
Tor.  Rcl..  188;'). 

091 


§  241.]  CLAIMS.  [chap.  IX. 

"  In  our  diplomatic  coiTCspoiuleuce  with  Great  Britain  we  have  taken 
the  ground  that  there  should  be  no  diplomatic  intervention  in  cases 
(whether  in  tort  or  contract)  in  which  there  could  be  a  resort  to  com- 
lietent  legal  courts. 

Mr,  Bayard,  Sec.  of  State,  to  Mr.  Tbelps,  Aug.  20,  1885.     MSS.  Inst.,  Gr.  Biit. 

"  I  have  the  honor  to  acknowledge  your  note  of  the  2d  instant,  sub- 
mitting a  memorial  from  Lum  "Way,  a  British  subject,  stating  that  he 
had  been  forcibly  and  illegally  expelled  fiom  the  town  of  New  Tacoma 
(W.  T.),  with  the  loss  of  considerable  i)roperty,  on  the  3d  November, 
1885. 

"The  memorial  has  received  careful  attention,  and  the  conclusion 
has  been  reached  that,  on  the  facts  therein  stated,  this  Department  is 
without  jurisdiction  to  act  in  the  matter.  The  memorialist  alleges  that 
for  II  long  time  prior  to  the  injury  complained  of,  he  was  peaceably  en- 
gaged iu  business  at  the  town  of  Tacoma.  The  inference  is,  that  he 
had  acquired  a  commercial  or  business  domicil  in  that  town  and  Terri- 
tory, and  in  selecting  that  locality,  voluntarily  subjected  himself  to  the 
usual  casualties  of  border  life  in  a  region  of  country  where  police  con- 
trol is  well  known  to  be  imperfect.  The  injuries  were  inflicted  by  mob 
violence  in  disregard  of  the  laws  and  all  public  authority;  consequently 
his  remedy  is  by  resort  to  the  judicial  courts,  which  are  open  to  him  for 
redress,  as  they  are  to  all  similar  sufferers,  without  regard  to  race  or 
nationality. 

"  This  position  was  taken  by  the  Department  in  the  note  which  I  had 
the  honor  to  address  you  on  the  1st  June  last,  in  reply  to  yours  of 
April  28,  1885,  in  the  case  of  J.  P.  Tuustall,  which  appears  to  be  analo- 
gous, and  I  see  no  reason  now  to  change  the  views  therein  expressed, 
and  which  it  is  not  necessary  for  me  to  repeat,  but  to  which  I  crave 
your  reference. 

''Even  if  the  petitioner  were  regarded  as  not  having  a  commercial  or 
business  domicil  in  Washington  Territory,  but  as  a  mere  transient 
visitor  in  that  locality,  his  remedy  would  be  through  the  judicial  de- 
partment of  the  Government. 

"  It  is  believed  that  this  position  has  not  only  been  maintained  with 
unbroken  uniformity  by  this  Government,  but  has  been  equally  pro- 
claimed and  consistently  enforced  by  the  British  Government  in  the 
cases  of  citizens  of  the  United  States  traveling  within  British  domin- 
ions. For  instance,  travelers  in  Ireland  have  been  innocently  involved 
in  local  disturbances  by  which  they  sustained  serious  damage,  and 
have  always  been  referred  to  the  judicial  courts  for  redress.  In  this 
country  non-residents  and  foreigners  have  the  privilege,  not  extended 
to  the  citizens  of  the  State  or  Territory  where  the  injury  is  sustained, 
of  electing  to  sue,  either  in  the  State  or  Territorial  courts  or  in  the 
courts  of  the  United  States.  Thus  a  foreigner  has  not  only  the  same 
G92 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§241. 

rights  of  action  as  American  citizens  when  suing  in  the  same  locality, 
which  is  all  he  would  be  entitled  to  under  the  law  of  nations,  but  the 
additional  and  important  right  above  referred  to,  of  electing  his  tribu- 
nal, which  citizens  of  the  locality  do  not  i)ossess. 

"  I  am  therefore  compelled  to  adhere  to  the  position  stated  in  my 
note  of  June  1  last,  and  to  refer  the  present  petitioner  to  the  appropri- 
ate territorial  or  district  courts  having  jurisdiction  to  give  relief  for  his 
injuries  and  to  punish  the  alleged  criminal." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  West,  Apr.  10,  1886.  MSS.  Notes,  Gr.  Brit. 
See  also  Mr.  Bayard  to  Mr.  Langston,  Jan.  12,  1886.  MSS.  Dom.  Let.  See 
supra,  $  189. 

British  subjects  may  sue  in  the  Court  of  Claims  of  the  United  States. 
This  is  a  privilege  granted  only  to  the  citizens  or  subjects  of  such  for- 
eign Governments  as  submit  to  suits  by  citizens  of  the  United  States. 
The  British  Government  accords  this  privilege  to  citizens  of  the  United 
States  by  a  petition  of  right. 

U.  S.  r.  O'Keefe,  11  Wall.,  178;  Carlisle  v.  U.  S.,  16  ihul,  117.  See  App.,  vol. 
iii,  §  241. 

Sovereigns  do  not  interfere  with  the  regular  course  of  the  adminis- 
tration of  justice  where  a  foreigner  is  a  party,  until  he  shall  have  gone 
to  the  court  of  last  resort  with  his  case. 
1  Op.,  25,  Eandolpb,  1792. 

A  nation  ought  not  to  interfere  in  the  causes  of  its  citizens  brought 
before  foreign  tribunals,  except  in  a  case  of  refusal  of  justice  or  of  pal- 
pable injustice. 

1  Op.,  53,  Bradford,  1794. 

For  the  recovery  of  their  property  in  Florida  and  for  redress  of  in- 
juries done  them,  our  citizens  must  apply  to  the  tribunals  of  that 
province. 

1  Op.,  63,  Lee,  1797. 

By  the  law  of  nations,  if  the  citizens  of  one  State  do  an  injury  to  the 
citizens  of  another,  the  Government  of  the  offending  subject  should 
take  every  reasonable  measure  to  cause  reparation  to  be  made  by  the 
offender  ;  but  if  the  offender  is  subject  to  the  ordinary  i)rocesses  of  law, 
the  principle  does  not  ordinarily  extend  to  oblige  the  Government  to 
make  satisfaction  in  case  of  the  inability  of  the  offender. 
1  Op.,  106,  Lincoln,  1802. 

The  courts  of  the  United  States  in  every  State  are  at  all  times  open 
to  the  subjects  of  a  friendly  foreign  power. 

1  Op.,  192,  Rush,  181G. 

The  executive  will  not  interfere  with  the  judiciary,  while  it  is  in  the 
regular  course  of  giving  construction  to  the  acts  of  Congress,  by  direct- 

093 


§  241.]  CLAIMS.  [CIIAP.  IX. 

iug  a  nolle pro}>cqui  of  a  i)iOL'eeding  against  British  vesscLs  fur  a  breacli 
of  the  navigation  act  of  April  18,  1818,  after  the  district  court  has  con- 
demned her  to  forfeiture. 
1  Op.,  360,  Wirt,  18;:0. 

Where  it  is  chiimcd  by  a  foreign  minister  tl)at  a  seizure  made  by  an 
American  vessel  was  a  violation  of  the  sovereignty  of  his  Government, 
and  he  satisfies  the  President  of  the  fact,  the  latter  may,  where  there 
is  a  suit  depending  for  the  seizure,  cansc  the  Attorney-General  to  file  a 
suggestion  of  the  fact  in  the  cause,  in  order  that  it  may  bo  disclosed 
to  the  court. 

1  Op.,  501,  Wirt,  1821. 

Where  aliens  suffVr  violence  from  citizens  of  the  United  States  in 
their  persons  or  property,  they  must  appeal  to  the  courts  for  redress; 
to  the  State  courts,  if  the  offense  be  a  criminal  one,  and  to  the  State  or 
Federal  courts  for  redress  by  a  civil  action. 

3  Op.,  25-1,  Butler,  1837. 

Neither  the  State  of  California  nor  the  United  States  is  responsible 
for  loss  to  the  owners  of  a  Peruvian  bark  lost  by  the  carelessness  of  one 
of  the  associated  i)ilots  appointed  under  the  laws  of  California. 
7  Op.,  229,  237,  238,  Cusliing,  1855. 

The  rule  is,  that,  before  a  citizen  of  one  country  is  entitled  to  the  aid 
of  his  Government  in  obtaining  redress  for  wrongs  done  him  by  another 
Government,  he  must  have  sought  redress  in  vain  from  the  tribunals  of 
the  offending  power. 

13  Op.,  547,  Akorman,  1871. 

The  Government  of  Brazil  is  not  responsible  for  damages  resulting 
from  the  alleged  corruption  of  a  municipal  judge,  in  authenticating  and 
ratifying  the  report  of  a  board  of  surveyors  upon  a  damaged  vessel. 

Even  if  the  charge  of  corruption  were  established,  the  Brazilian  Gov- 
ernment would  not  be  responsible,  as  the  misconduct  violated  no  treaty 
stipulations,  did  not  benefit  the  public  treasury  of  the  country,  and,  for 
aught  that  appeared,  redress  could  be  had  in  the  Brazilian  courts. 

13  Op.,  553,  Ackerman,  1371. 

An  American  steamer  was  seized  in  the  port  of  Granada  by  a  party 
of  armed  men,  under  an  order  of  a  judicial  ollicer  of  the  port,  and  after 
a  detention  of  a  few  hours  was  released,  pursuant  to  an  order  of  the 
same  judge.  The  seizure  seemed  to  have  been  made  at  the  instance  of 
the  consignees  of  the  vessel,  as  a  mode  of  enforcing  a  supposed  legal 
right.  Advised,  that,  as  the  tribunals  of  Nicaragua  would  presumably 
afford  redress,  this  Government  should  not  at  the  time  interfere. 

13  Op.,  554,  Ackerman,  1872. 
094 


CHAP.  IX/J  WHEN   liEMEDY    IS   JUDICIAL.  [^  242. 

(())  But  this  does  not  apply  aviiere  there  is  no  local  judiciary,  or  where 
the  judicial  action  is  in  violation  of  international  law,  or  where 
the  test  is  waived,  or  where  there  is  undue  discrimination. 

§   242. 

It  was  maiutained  before  the  British  and  American  Mixed  Commission 
sitting  iu  London  under  the  treaty  of  1794,  that  a  decision  of  a  British 
prize  court  estopped  the  party  against  whom  it  was  made  from  i)roceed- 
ings,  when  a  foreigner,  through  his  own  Government.  This  was  con- 
tested by  Mr.  Pinkney,  and  his  position  was  affirmed  by  the  arbitration 
acting  under  the  advice  of  Lord  Chancellor  Loughborough,  and  is  now 
accepted  law. 

Seo  Wbeatou's  Life  of  Piukuey,  app.,  infra,  §  329a.  Siqira,  ji^  150a,  238  ;  infra, 
§  329a,  as  to  uudue  belligerent  bias  of  prize  courts. 

The  rule  that  a  claimant  for  redress  for  injuries  sustained  iu  a  foreign 
country  must  first  exhaust  judicial  remedies  in  such  country,  does  not 
apply  to  countries  of  imperfect  civilization,  or  to  cases  in  which  prior 
proceedings  show  gross  ijerversion  of  justice. 

Mr,  Everett,  Sec.  of  State,  to  Mr.  Marsh,  Feb.  5,  1853.  MSS.  Inst.,  Turkey. 
See  Mr.  Marcy,  Sec.  of  State,  on  tbe  same  subject,  to  Mr.  Pryor,  July  15, 
1855;  ibid. 

Several  citizens  of  the  United  States,  having  been  massacred  at  Jaffa, 
in  January',  1858,  and  the  Turkish  Government  having  taken  no  eiiicieut 
measures  to  bring  the  assassins  to  justice,  the  Secretary  of  State  re- 
quested the  Secretary  of  the  Navy  "  that  orders  be  given  the  com- 
manding officer  of  our  squadron  in  the  Mediterranean  that  he  would 
put  himself  in  communication  with  the  minister  of  the  United  States  at 
Constantinople,  and  after  receiving  from  him  such  information  as  he 
may  require,  to  repair  to  Jaflfii  and  to  take  such  measures  as  may  be  in 
his  power  to  induce  the  Turkish  authorities  to  inflict  upon  the  criminals 
the  punishment  which  they  so  richly  deserve." 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Toucey,  Aug.  10,  1858.  MSS.  Dom.  Let.  As  to 
display  of  force,  see  infra,  $  321.  As  to  forcible  measures  to  exact  payment, 
see  supra,  $  222. 

A  clause  iu  a  treaty  requiring  that  claims  on  oTie  Government  by 
citizens  of  another  Government  shall  be  exclusively  cognizable  by  the 
judicial  tribunals  of  the  former,  does  not  apply  when  such  tribunals 
are  closed  by  arms. 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Foster,  Aug.  15,  1673.  MSS.  Just.,  Mcx.  Same 
to  same,  Nov.  16,  1873 ;  Sept.  22,  1874.    Ibid. 

Laws  of  a  foreign  state  attemi)ting  to  dei)rive  citizens  of  the  United 
States  from  having  recourse  to  their  own  Government  to  press  their 
claims  diplomatically,  will  not  be  regarded  as  internationally  operative 
by  the  Government  of  the  United  States. 

Mr.  Fiwli,  S.'c.  of  State,  to  Mr.  Russell,  Sept.  15,  1^74.  MSS.  Inst.,  Vencz.  Seo 
supra,  $  9. 

A  stipulation  in  a  contract  to  be  bound  by  the  laws  of  the  country 
where  the  money  lent  is  to  be  eujployed  does  not  ojjcratc  where  justice 

G05 


§  242.]  CLAixMS.  [chap.  IX. 

is  douied   ia  sucli  coiiutiy,  tbou^li  lo  iiiake  out  a  claim  in  wiicli  a  case 
such  dcuial  of  justice  must  be  delinitely  shown. 

Mr.  F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Logan,  Apr.  !'>,  1879.    MSS. 
Inst.,  Cent.  Am. 

A  citizen  of  the  United  States,  Mr.  Joliii  E.  Wheelock,  having  been 
treated  in  1879  with  great  cruelty  by  a  Venezuela  official  named  Sotillo, 
proceeded  against  Sotillo  in  the  Venezuelan  courts,  but  there,  in  gross 
violation  of  justice  and  of  the  rules  of  international  law,  was  refused 
redress. 

"  The  general  i)rinci[)le  here  invoked  by  I\rr.  Saavedra,  that  if  a  crime 
is  committed  against  the  person,  property',  or  character  of  an  alien  resi- 
dent of  the  country  by  a  citizen  of  the  country  in  which  such  alien  may 
be  resident,  and  the  Government  of  such  country  secures  the  judgment 
and  punishment  of  its  author,  its  obligations  to  the  Government  of  the 
party  wronged  are  satisfied,  and  that  it  would  not  in  such  case  owe  pe- 
cuniary indemnity  to  the  ofi'ended,  may  very  well  be  admitted ;  but  to 
claim  this  for  the  proceedings  had  before  the  Venezuelan  judges  in  the 
case  of  Commissary  Sotillo  would  seem  little  less  than  a  mockery  of 
justice. 

"To  tiie  worst  features  of  the  outrage  perpetrated  on  Mr.  Wheelock 
(the  occurrence  in  the  woods)  there  were  no  witnesses  but  the  i)erpetra- 
tors  and  the  victim.  Mr.  Wheelock's  evidence  was  not  before  the  judges, 
and  there  is,  therefore,  every  reason  to  believe  that  Sotillo's  alleged  vin- 
dication rested  solely  on  his  own  testimony  and  that  of  his  subordinate 
instruments. 

"To  denominate  the  proceedings  against  the  officer  Sotillo  as  a  miscar- 
riage of  justice,  is  the  mildest  form  of  denunciation  that  can  be  applied. 
The  sanction  of  the  executive  Government  of  Venezuela  imparts  to  them 
the  character  of  an  absolute  denial  of  justice.  Were  such  an  outrage  as 
that  perpetrated  by  Sotillo  on  Mr.  Wheelock  possible — as  fortunately  it 
is  not — in  the  United  States,  and  Venezuelan  citizens  were  the  subject 
of  it,  the  ofifending  officer  would  be  instantly  dismissed  from  the  public 
service  and  handed  over  to  the  proper  tribunals  for  trial,  and,  if  found 
guilty,  subjected  to  the  severest  punishment  denounced  by  the  laws  of 
the  country  against  an  offense  at  once  so  abnormal  and  inhuman.  It  is 
unnecessary  to  invoke  the  principles  of  the  treaty  of  amity  and  friend- 
ship (18G0)  exisdng  between  the  United  States  and  Venezuela,  of  the 
3d  article  of  which  these  acts  are  in  clear  contravention.  It  is  no  less 
an  offense  against  the  principles  of  public  law  and  the  civilization  of 
the  age.  This  Government  would  be  wanting  in  that  duty  which  it  owes 
to  its  citizens,  and  regardless  of  its  own  dignity,  were  it  lightly  to  pass 
over  so  flagrant  an  outrage." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Baker,  Oct.  15,  1880.    MSS.  Inst.,  Vencz. ;  For. 

Eel.,  1880. 
As  sustaining  this  position,  see  Mr.  Frelinghuyscn  to  Mr.  Baker,  Jan.  IC,  1883. 

MSS.  Inst.,  Veuez.;  For.  Eel.,  1883.     Same  to  same.  Fob.  24,  1883;  ibid. 

Same  to  same,  Nov.  Ifi,  1883;  ihid. 

G96 


CHAP.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§  242. 

Obstructiou  by  SiJanisli  officials  of  a  citizeu  of  the  United  States  iii 
Spain  in  his  attempts  to  obtain  judicial  redress  for  injuries  there  inflicted 
on  him  is  the  subject  of  iuternational  complaint. 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Faircliild,  Jan.  17,  1881.    MSS.  lust.,  Spain. 

"A  foreigner's  right  to  ask  and  receive  the  protection  of  his  Govern- 
ment does  not  depend  upon  the  local  law,  but  upon  the  law  of  his  own 
country.  His  citizenship  goes  with  him  into  whatever  country  he  may 
visit,  and  the  duty  of  his  Government  to  protect  him  so  long  as  he  does 
nothing  to  forfeit  his  citizenship  accomiianies  him  everywhere.  This 
duty  his  Government  must  discharge,  and  it  could  not,  if  it  would,  be 
relieved  therefrom  by  the  fact  that  the  municipal  law  of  the  country 
where  its  citizen  may  happen  to  be  has  seen  fit  to  provide  under  what 
circumstances  he  may  be  permitted  to  appear  before  the  authorities  of 
that  country.  Such  a  law  cannot  control  the  action  or  duty  of  his  Gov- 
ernment, for  Governments  are  bound  among  themselves  only  by  treaties 
or  by  the  recognized  law  of  nations,  and  there  is  nothing  in  the  existing 
treaties  between  the  two  countries  or  in  the  law  of  nations  which  recog- 
nizes as  pertaining  to  Venezuela  the  right  by  the  enactment  of  a  munic- 
ipal law  to  say  how,  or  where,  or  under  what  circumstances  the  Gov- 
ernment of  the  United  States  may  or  may  not  ask  justice  in  behalf  of 
one  of  its  own  citizens. 

"It  may,  perhaps,  be  broadly  admitted  that  when  the  courts  of  a 
country  afford  adequate  remedy  to  foreigners  and  natives  alike  in  case  of 
wrongful  treatment,  resort  thereto  in  the  first  instance  by  the  aggrieved 
party  may  be  proper  j  but  even  in  such  a  case  the  right  of  the  sufferer's 
Government  to  watch  over  the  proceedings  from  the  outset  is  inalien- 
able. It  is  its  duty  to  see  at  every  stage  that  justice  is  done,  to  urge  full 
and  speedy  compliance  with  the  laws,  and  by  its  counsel  and  remon- 
strance, its  moral  and  material  support,  to  advance  the  interest  of  its 
wronged  citizen. 

"  Mr.  Wheelock's  case  has,  however,  passed  far  beyond  the  initial 
stage  to  which  President  Guzman's  letter  would  now  seek  to  recommit 
it.    It  has  reached  the  higher  plane  of  an  apparent  denial  of  justice. 

"The  correspondence  lately  published  shows  that  the  departmental 
and  State  courts  of  Venezuela  successively  decided  that  no  grounds 
existed  for  continuing  the  process  or  ordering  the  arrest  of  the  commis- 
sary, Sotillo,  who  inflicted  the  illegal  torture  upon  Mr.  Wheelock.  On 
his  excellency's  own  showing,  this  would  have  sufficed  to  dismiss  the 
complaint  forever,  without  recourse  or  appeal. 

"Conceding  the  right  of  this  Government  to  ask  justice  for  its  injured 
citizen,  the  Federal  Government  of  Venezuela  ordered  the  State  govern- 
ment to  reopen  the  examination.  This  was  done  and  the  result  was  tlio 
same.  Here,  then,  we  have  three  failures  of  justice,  any  one  of  which, 
if  President  Guzman's  argument  be  admitted  as  well  founded,  was  neces- 
sarily final. 

01)7 


§  242.]  CLAIMS.  [cuAr.  ix. 

"Lut  two  years  alterwanl  the  Venezuelan  Govciumeut  discovered 
that  'the  result  of  the  proceedinj^s  involves  civil  responsibilities/  and  a 
fourth  investigation  was  held,  me  result  of  which  amply  bore  out  the 
allegations  of  Mr.  Wheelock's  complaint.  Warrants  were  issued  for 
the  arrest  of  Sotillo,  who  had  meanwhile  left  the  country,  and  orders 
were  issued  to  conQscate  Sotillo s  property,  which  he  had  before  this 
placed  out  of  reach  of  judicial  emoargo. 

''Now,  after  more  than  four  years  have  passed,  it  is  claimed  that  the 
responsibility  of  Venezuela  to  punish  the  oflender  is  met  by  these  tardy 
and  ineffectual  iiroceedings;  and,  further,  that  the  sufferer  is  wholly 
without  civil  recourse  for  material  reparation,  save  such  as  the  federal 
court  may  iind  due  to  him  from  the  commissary,  Sotillo. 

"I  may  be  permitted  to-pass  over,  as  not  meriting  serious  considera- 
tion or  argument,  the  allegation  which  your  note  implies,  that  the  Gov- 
ernment of  Venezula  is  not  liable  'on  account  of  occurrences  over  which 
it  had  absolutely  no  control  and  of  which  it  had  no  knowledge.'  It  is 
not  claimed  that  the  federal  Government  directed,  or  was  cognizant 
of,  or  consented  to,  the  outrage  perpetrated  by  its  public  servant  in  the 
execution  of  his  public  functions. 

"  The  simple  complaint  of  this  Government  is,  that  an  officer  of  jus- 
tice of  Venezuela,  in  the  exercise  of  his  official  functions,  subjected  an 
American  citizen,  whom  he  had  arrested  on  suspicion,  to  grievous  bodily 
torture  to  extort  from^him  a  confession  of  guilt.  For  this  act  this  Gov- 
ernment asks  the  punishment  of  the  offender,  and  expects  that  Ven- 
ezuela will  tender  an  equitable  indemnity  to  the  victim. 

"  The  President  is  surprised  at  the  tardy  proposal  of  Venezuela,  now 
for  the  first  time  heard  of  in  connection  with  the  case,  that  Mr.  Wheel- 
ock  shall  seek  redress  at  the  hands  of  the  high  federal  court.  Even  if 
he  had  been  disposed  to  consent  to  such  a  disposition  of  the  matter  in 
the  interest  of  friendship  and  harmony  between  the  two  countries,  a 
casual  examination  of  the  provisional  decrees  of  liih  February,  1873, 
concerning  the  rights  and  indemnification  of  foreigners,  which  prescribe 
the  procedure  to  which  the  complaint  would  be  subjected,  leads  the 
President  to  withhold  his  acceptance  of  such  a  resort. 

"This  Government  cannot  waive  the  right  of  its  citizens  to  claim  dip- 
lomatic protection  as  those  decrees  require.  It  cannot  admit  that  if  the 
court  sh;dl  deem  the  claim  for  indemnity  exaggerated,  the  American 
claimant  shall  forfeit  all  rights  and  incur  heavy  fine  or  prolonged  im- 
prisonment. It  cannot  consent  to  allow  the  court  power  to  dismiss  the 
clainj  because  more  than  two  years  have  passed  since  the  commission 
of  the  injury.  It  cannot,  in  a  word,  regard  those  decrees  as  controlling 
the  equitable  or  moral  rights  of  an  injured  American  citizen. 

"  I  have  remarked  that  more  than  two  years  elapsed  before  any  ju- 
dicial resort  of  Venezuela  admitted  that  Sotillo  was  even  liable  to  proc- 
ess. Permit  me  to  ask,  in  no  captious  spirit,  how  it  is  supposed  Mr. 
Wheelock  would  have  fared  had  he  submitted  to  those  provisional  de- 

G9S 


CUAV.  IX.]  WHEN    REMEDY    IS    JUDICIAL.  [§  242. 

crees  iu  the  face  of  the  solomu  adjiiclication  of  three  judicial  tribunals 
of  Yeiiezuela  that  no  grounds  existed  for  subjecting  the  commissary, 
Sotillo,  to  legal  process  ?  Would  fine  and  imprisonment  have  been 
added  to  the  wrong  under  which  he  already  lay?  If  so,  would  it  not 
have  been  alleged  that  diplomatic  redress  was  effectually  barred  to  him 
by  reason  of  his  voluntary  submission  to  the  operation  of  those  decrees? 
''A  copy  of  the  present  correspondence  will  be  sent  to  the  United 
States  minister  at  Caracas  with  instructions  to  say  that  this  Govern- 
ment does  not  accei)t  the  reply  made  to  its  representations,  and  that  it 
renews  its  demand  for  the  punishment  of  the  offender,  and  repeat  its 
expectation  that  the  Government  of  Venezuela  will  tender  to  Mr. 
Wheclock  a  just  indemnification." 

Mr.  Frclinglauysen,  Sec.  of  State,  to  Mr.  Soteldo,  Apr.  4,  1684.     MSS.  Notes, 

Venez. ;  For.  Eel.,  1884. 
See,  as  euforcing  the  same  claim,  Mr.  Bayard,  Sec.  of  State,  to  Mr.  Soteldo,  Apr. 

3, 1885.    MSS.  Notes,  Veuez.  ;  For.  Rel.,  1885.    Same  to  same,  Apr.  10, 1885; 

ibid.    July  7,  1885;  ibid.    This  claim  was  compromised  for  S0,000,  payable 

in  two  installments.     Same  to  same,  Oct.  16,  1885;  Dec.  7,  1885;  Jan.  14, 

1886;  Mar.  12,1886;  ibid. 

"Apart,  however,  from  the  question  of  the  jurisdiction  and  the  de- 
cisions of  the  French  tribunals,  it  is  evident  that  for  such  wrongs  as  Mr, 
Frear  complains  of,  the  state  liable  therefor  cannot  be  sued  in  its  own 
courts,  but  is  directly  responsible  to  the  state  whose  citizen  has  been 
injured. 

"In  the  case  of  the  United  Slates  v.  DieJcelman  (92  U.  S.,  524),  the 
Supreme  Court  of  the  United  States  said : 

"A  sovereign  cannot  be  sued  in  his  own  courts  without  his  consent.  His  own  dig- 
nity, as  well  as  the  dignity  of  the  nation  he  represents,  prevents  his  appearance  to 
answer  a  suit  against  him  in  the  courts  of  another  sovereignty.  »  *  *  Hence,  a 
citizen  of  one  nation,  wronged  by  the  conduct  of  another  nation,  must  seek  redress 
through  his  own  Government.  His  sovereign  must  assume  the  responsibility  of  pre- 
senting his  claim,  or  it  need  not  be  considered. 

"The  principle  of  liability  here  contended  for  was  forcibly  stated  by 
Mr.  Wheaton  in  a  memorable  controversy  between  the  United  States 
and  Denmark.  He  said  that  'the  acts  of  a  sovereign,  however  binding 
on  his  own  subjects,  if  they  are  not  conformable  to  the  public  law  of 
the  world,  cannot  be  considered  as  binding  on  the  subjects  of  other 
states.  A  wrong  done  to  them  forms  an  equally  just  ground  of  com- 
plaint on  the  part  of  their  Government,  whether  it  proceed  from  the 
direct  agency  of  the  sovereign  or  is  inflicted  by  the  instrumentality  of 
his  tribunals.     (See  Uouse  Doc,  Xo.  240,  1st  sess.,  22d  Cong.,  p.  2(1)." 

Mr.  liayard,  Sec.  of  State,  to  Mr.  McLaiK-,  June  23,  lh8fi.     MSS.  Inst.  Fniiicc. 

.SnoApp.,  vol.  iii,  ^  242. 

The  test  does  not  apply  where  the  offending  Government  has,  by  the 
acts  of  its  proper  organ,  relieved  the  party  complaining  from  appealing 
to  the  courts. 

rjOp.,  547,  Akennun,  1H71. 

O'JD 


§§  243, 244.]  CLAIMS.  [chap.  ix. 

(7)    ClTl.l'AIULlTY   Ol-   CI.AI.MANT. 
§243. 

To  iutenuitioLial  claims  the  rules  of  general  jiirisprudeuce  iu  this  re- 
lation ai)|)Iy  as  follows:  A  i)arty  to  a  malicious  wrong  cannot  recover 
from  another  for  damages  therefrom  resulting  to  himself.  A  person 
whose  negligence  is  the  immediate  cause  of  a  negligent  injury  to  him- 
self cannot  recover  from  another  damages  for  such  injury. 

Diplomatic  aid  will  not  be  rendered  to  press  on  a  foreign  Government 
a  claim  which  is  based  on  an  act  against  public  policy. 

Mr.  Scwaitl,  Sec.  of  State,  to  Mr.  Wliitiioy.  July  21,  ISiiB.     MSS.   Doiii.   Let. 
Soo  App.,  vol.  iii,  vS  ii  223,  24;?. 

Where  the  detention  of  a  vessel  in  a  blockaded  i>ort  is  caused  by  her 
resistance  to  the  orders  of  the  properly  constituted  authorities  whom 
she  was  bound  to  obey,  she  preferring  such  detention  to  a  clearance 
upon  the  conditions  imposed,  her  owner,  a  subject  of  Prussia,  is  not  "  en- 
titled to  any  damages  "  against  the  United  States,  under  the  law  of 
nations  or  the  treaty  with  that  power. 
U.  S.  V.  Dickelman,  92  U.  S.,  520. 

An  alien  who  furnished  munitions  of  war  and  supplies  to  the  Con- 
federate Government,  or  did  any  acts  which  would  have  rendered  him 
liable  to  punishment  for  treason  had  he  owed  allegiance  to  the  United 
States,  is  precluded  under  the  act  of  March  12,  18G3,  from  suing  for 
damages  sustained  by  confiscation  of  his  goods. 

Youug  V.  U.  S.,  97  U.  S.,  39.     See  cases  cited  su2)ra,  H  223,224. 

^o  nation  gives  herself  a  claim  to  call  upon  other  nations  for  a  strict 
observance  of  their  law  who  does  not  observe  it  strictly  upon  her  own 
part  not  only  in  the  particular  class  of  cases  iu  which  she  makes  the 
call,  but  throughout  the  whole  system  of  that  law. 

1  Op.,  509,  511,  Wirt,  18-2L 

(8)   No   NATIONAL  inSCRI.MINATION   AS   TO  CLA.I.MANT. 
§    244. 

On  this  topic  see  supra,  ^^  230,  23L 

Citizens  of  the  United  Slates  when  abroad  will  be  protected  from 
discrimination  aimed  at  them  on  account  of  their  nationality. 

Supra,  $  189. 

A  citizen  of  the  United  States  who  abandons  his  nationality  cannot 
take  the  ground  that  such  nationality  was  discriminated  against  by  a 
foreign  State. 

Supra,  $$  nGff. 

"If,  indeed,  Mr.  Thrasher,  in  his  arrest  and  trial,  did  not  enjoy  the 
benefits  which  native-born  Spanish   subjects  enjoy  in  like  cases,  but 
700 


CHAP.  IX. J  PRACTICE    AS    TO    PAYMENT.  [§  245. 

was  moro  harshly  treated,  or  more  severely  punished,  for  the  reason 
that  he  was  a  native-born  citizen  of  the  United  States,  it  would  bo  a 
clear  case  of  the  violation  of  treaty  obligations,  and  would  demand  the 
interposition  of  the  Government.  There  exists  in  this  Department  no 
proof  of  any  such  extraordinary  treatment  of  Mr.  Thrasher." 

Report  on  Thrasher's  case  by  Mr.  Webster,  Sec.  of  State,  to  the  Prcsideut,  Dec. 

23,  1851.    6  Webster's  Works,  530.     See  as  to  this  case  siqna,  ^^  190,  203,  229, 

230  ;  infra,  $  357. 

"  The  principle  upon  which  this  decision  rests  is  that  protection  and 
allegiance  are  reciprocal ;  that  the  citizen  of  the  United  States  who  be- 
comes domiciliated  in  another  country,  contributing  his  labor,  talents, 
or  wealth,  to  the  support  of  society  there,  becomes  practically  a  member 
of  the  political  State  existing  there,  and  for  the  time  withdraws  himself 
from  the  duties  of  citizenship  here,  and  consents  to  waive  the  reciprocal 
right  of  protection  from  his  own  Government." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Burton,  Jan.  16, 18G2.     MSS.  Inst.,  Colombia. 

"  We  are  not  entitled  to  claim  for  our  citizens  on  trial  in  that  King- 
dom (Great  Britain)  privileges  which  are,  1st,  not  granted  by  British 
law  to  British  subjects ;  2d,  are  not  allowed  in  the  United  States  to 
aliens  of  any  country  in  any  case,  civil  or  criminal." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Rogers,  Jan.  11,1870.     MSS.Dom.Lct.     See  supra, 

i  189. 
That  taxation,  when  not  unequal,  cannot  be  excepted  to  by  aliens,  see  sujjra,  $ 

204. 

"British  subjects,  when  within  the  territorial  jurisdiction  of  the 
United  States,  are  required  to  respect  and  obey  the  laws  of  the  United 
States,  and  when  held  to  answer  for  any  ofiense  against  these  laws  in 
the  courts  of  the  country,  have  the  same  rights  and  privileges  extended 
to  them  that  are  enjoyed  by  citizens  held  to  answer  for  similar  offenses. 
Citizens  of  the  United  States,  when  held  to  answer  in  the  courts  of  Great 
Britain  or  her  colonies,  have  a  right  to  demand  the  same  privileges  ex- 
tended to  British  subjects  under  like  circumstances." 

Mr.  Davis,  Acting  Sec.  of  State,  to  Mr.  Austin,  July  17,  1873.    MSS.  Dom.  Let. 
That  a  sovereign  is  as  much  bound  to  redress  wrong  done  by  an  erroneous  de- 
cision of  a  court  (even  of  admiralty)  as  by  erroneous  executive  action,  see 
ivfra,  5  329rt;  supra,  $  238. 

XIII.  PRACTICE  AS  TO  PAYMENT. 
§  245. 

"  1  am  under  the  impression  that  the  payment  by  diplomatic  agents, 
either  directly  or  through  this  Department,  to  claimants  on  foreign 
Governments  of  moneys  which  may  bo  recovered  from  such  Govern- 
ments in  .satisfaction  of  claims  is,  to  say  Ihe  lo:ist,  irregular,  niid  im- 
poses re.si)onsibility  where  it  does  not  properly  belong." 

Mr.  Clayton,  Sec.  of  State,  to  Mr.  Shioldrt,  May  19,  1849.     MSS.  Ins!.,  Venez. 

701 


§  245.]  CLAIMS.  [chap.  ix. 

A  minister  who  collects  from  a  foreign  Government,  under  instruc- 
tions from  his  Government,  a  sum  due  a  citizen  of  the  United  States,  is 
not  entitled  to  make  any  charge  for  expenses  of  collection,  even  though 
he  act  at  the  time  under  a  power  of  attorney  from  the  claimant. 

Mr.  Marcy,  Sec.  of  State,  to  Mr.  Peden,  Apr.  10,  1856.     MSS.  Inst.,  Arg.  Rep. 
See  supra,  $  99. 

The  cnrrency  in  which  an  award  is  to  be  paid  is  that  of  the  country 
where  it  is  payable,  and  hence  an  award  payable  by  the  United  States 
Government  in  the  United  States  maj'  be  paid  in  Treasury  notes  which 
are  at  the  time  of  the  payment  a  legal  tender. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Mortauo,  Feb.  12,  18GG.     MSS.  Dom.  Let. 
Affirmed  in  letter  of  Mr.  Seward  to  Messrs.  Embry  ct  al.,  May  20,  18G7. 

The  validity  of  assignments  of  claims,  such  as  those  j^resented  before 
commissioners  under  treaty  conventions,  has  been  recognized  by  the 
various  boardsof  commissioners  and  the  courtsof  justice  for  many  years. 
Jiulson  r.  Corcoran,  17  How.,  014. 

A  commission  constituted  in  pursuance  of  treaty  provisions  to  settle 
and  adjust  disputed  claims  is  for  that  purpose  a  quasi  court,  and  an 
agreement  to  present  and  prosecute  before  it  a  claim  at  a  fixed  com- 
pensation, or  for  a  reasonable  i)ercentage  of  the  amount  recovered,  is 
not  illegal,  immoral,  or  against  public  policy. 

Wright  V.  Tebbitts,  91  U.  S.,  252. 

Under  the  Chinese  indemnity  treaty  an  award  that  the  payment  shall 

be  in  gold  is  legal. 

Tyers  r.  U.  S.,  5  Ct.  Cls.,  509. 

That  the  circuit  court  for  the  District  of  Columbia  had  jurisdiction  to  adjudicate, 

under  a  bill  in  equity,  the  title  of  contesting  claimants  to  a  fund  awarded 

to  be  paid  under  tbe  Mexican  treaty,  see  Clark  v.  Clark,  17  How.,  315. 
As  to  settlement  of  conflicting  claims  to  an  award,  see  Coraegys  v.  Vasse,  1  Pet., 

123  ;  Judson  r.  Corcoran,  17  How.,  612. 
As  to  Geneva  awards,  see  Abbott's  National  Digest,  title,  Geneva  awards.    As 

1o  treaty  of  1871,  and  its  rules,  see  supra,  ^  IbOg.    As  to  action  of  Geneva 

tribunal,  see  infra,  §  402«. 

The  decision  of  the  head  of  a  Department  directing  payment  of  a  par- 
ticular claim,  is  binding  upon  all  the  subordinate  officers  by  whom  the 
same  is  to  be  audited  and  passed. 

5  Op.,  87,  Johuson,  1849. 

As  Henry  de  la  Francia,the  original  claimant,  was  dead  at  the  time  of 

the  passage  of  the  supplementary  act  of  1848(9  Stat.  L.,  73G),  authorizing 

the  Secretary  of  State  to  settle  his  claim  for  advances,  etc.,  and  as  the 

claim  was  assets  belonging  to  his  estate,  the  avails  of  which  were  to  be 

702 


CHAP.  IX.]  PRACTICE    AS    TO    PAYMENT.  [§  245. 

accounted  for  as  siicb,  it  was  advised  tliat  the  amount  awarded  should  be 
paid  only  to  an  administrator  duly  appointed  and  authorized  to  receipt 
for  the  estate.  As,  however,  it  appeared  that  a  competent  court  had  de- 
cided Joseph  de  la  Francia  to  be  the  sole  distributee  entitled  to  the 
amount  from  the  administrators,  the  Secretary  was  advised  to  take  a 
receipt  from  him  or  his  attorney  also.  It  was  also  held  that  under  a 
power  of  attorney  executed  by  Joseph  de  la  Francia  to  James  Bowie, 
the  latter  had  authority  to  substitute  Isaac  Thomas  in  his  stead  ;  but 
that  Thomas  could  not  legally  substitute  William  Cost  Johnson  in  his 
stead. 

5  Op.,  135,  137,  Johusou,  1849.    . 

It  was  further  held  that  the  receipt  and  acquittance  in  blank,  purporting 
to  have  been  signed  by  Isaac  Thomas,  if  authentic,  gives  authority  so 
to  fill  it  up  as  to  make  it  a  full  discharge  and  acquittance  of  all  title  to 
the  sum  awarded  to  said  Joseph  de  la  Francia  by  the  Secretary  of 
State. 

Ibid. 

AVhere  money  is  due  from  the  Government  to  the  heirs  of  one  de- 
ceased, and  there  is  a  dispute  as  to  the  legal  descent,  such  dispute 
should  be  decided  by  the  court  rather  than  by  the  executive  officers. 

5  Op.,  670,  Crittenden,  1853. 

The  Secretary  of  State  has  no  power  to  appoint  a  commission  or 
board  to  determine  how  much  money  a  foreign  prince  shall  pay  to  coun- 
sel in  the  United  States  for  professional  services. 

6  Op.,  386,  Gushing,  18-54. 

An  award  under  the  convention  with  Peru  of  18C3,  "  payable  in  cur- 
rent money  of  the  United  States,"  may  legally  be  paid  either  in  Treas- 
ury notes  or  in  sjiecie. 
11  Op.,  52,  Bates,  1864. 

Where,  by  the  convention  of  1853  with  Great  Britain,  it  was  agreed 
that  all  moneys  awarded  by  the  commissioners,  on  account  of  any  claim, 
should  be  paid  by  one  Government  to  the  other,  it  was  held  that  the 
moneys  found  due  from  the  foreign  Government  to  claimants,  who  were 
citizens  of  the  United  States,  were  to  be  paid  to  the  Secretary  of  State, 
whose  duty  it  was  to  have  the  same  paid  to  those  entitled  to  receive 
them.  It  was  also  held  to  be  the  appropriate  duty  of  the  disbursing- 
clcrk  of  the  State  Department  to  take  chiirge  of  and  disburse  such 
moneys.  lie  was  not  entitled,  therefore,  to  commissions  on  the  fund 
ior  any  services  rendered  in  keeping  and  disbursing  the  same. 

10  Op.,  31,  BatPH,  1801. 

703 


§  246.]  CLAIMS.  [CUAP.  IX. 

XIV.  INTEREST. 

Not  generally  allowablk. 

§  24G. 

lutercst  is  not  an  integral  part  of  a  debt  under  the  common  law  of 
England  as  accepted  in  tlio  United  States. 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Ilammonrt.     1  Am.  St.  Pap.  (For.  Rel.),  201, 

237. 
As  to  how  far  iutcrest  is  i)art  of  an  award,  see  Mr.  Clay,  Sec.  of  State,  to  Mr. 
Vaughan,  Apr.  15, 1826.    Same  to  same,  Oct.  12, 1826.    MSS.  Notes,  For.  Leg. 

When  a  fund  awarded  to  a  claimant  is  invested  by  the  Department 
in  United  States  securities,  on  which  interest  has  accrued  between  in- 
vestment and  payment,  such  interest  is  not  payable  to  the  claimant. 

Mr.  Bayard,  Sec.  of  State,  to  Messrs.  Coudert  Bros.,  Oct.  7,1885.  MSS.  Dom. 
Let.  AfiBrmiug  Mr,  Frelinghnysen's  ruling  in  letter  to  same  parlies  of 
Feb.  26, 18S5. 

"  Yonr  letters  of  the  8th  and  9th  instant,  in  reply  to  mine  of  the  7th, 
have  been  received  and  considered. 

"  I  perceive  no  reason,  in  view  of  the  arguments  you  advance,  for  re- 
versing the  decision  of  the  Department  under  which  the  retained  five 
per  centum  of  the  Cuban  indemnity  awards  has  been  paid  to  the  claim- 
ants without  the  interest  accruing  thereon  by  reason  of  the  investment 
of  the  funds  while  held  in  trust. 

"  AYithont  entering  upon  discussion  of  the  points  involved,  I  may 
observe  that  the  investment  of  the  retained  moneys  was  in  pursuance 
of  the  general  system  founded  on  section  2  of  the  act  of  Congress  of 
11th  September,  1841,  now  section  3G59  of  the  Revised  Statutes,  by 
which  it  is  prescribed  that  'All  funds  held  in  trust  by  the  United 
States  and  the  annual  interest  accruing  thereon,  where  not  otherwise 
required  by  treaty,  shall  be  invested  in  stocks  of  the  United  States, 
bearing  a  rate  of  interest  not  less  than  five  per  centum  iier  annum.' 
This  enactment  is  silent  as  to  the  beneficiary  of  such  a  transaction, 
and  the  sole  competence  of  Congress,  which  prescribed  the  mode  of 
investment,  to  direct  the  disposition  of  the  i^roceeds,  is  beyond  doubt. 

"  The  precedents  of  the  Japanese  indemnity  fund  on  the  one  hand 
and  the  Alabama  claims  fund,  to  which  you  refer,  on  the  other,  show 
that  Congress  has  exercised  its  discretion  in  the  premises  in  each  case. 
It  may  be  remarked  farther  that  in  the  case  of  the  returned  Chinese  in- 
demnity fund,  Congress  applied  a  part  of  the  accrued  interest  to  the 
satisfaction  of  the  claim  of  an  American  citizen  against  China. 

"  It  is,  I  hold,  res  adjudicata.  that  the  Secretary  of  State  has  not  dis- 
cretionary power  to  dispose  of  the  accumulations  resulting  from  invest- 
ments made  in  pursuance  of  the  act  of  11th  September,  1841.  Holding 
this,  I  cannot  be  bound  by  what  I  must  deem  to  have  been  the  improv- 
704 


CHAP.  IX.]  INTEREST.  [§  246. 

ideut  iutimatiou  contained  in  my  predecessor's  letter  of  September  13, 
1880.  I  have  no  option  but  to  cause  tlie  accumulations  in  the  present 
case  to  pass  into  the  public  Treasury,  where  it  is  always  at  the  supreme 
disposal  of  Congress." 

Same  to  same,  Oct.  16,  1885 ;  ibid. 

A  mandamus  in  this  case  was  refused  by  the  supreme  court  of  the 
District  of  Columbia  (U.  S.  ex  reJ.  Angarica  v.  Bayard,  4  Mackey,  311), 
on  the  ground  that  the  question  was  one  of  executive  discretion,  not 
open  to  be  reviewed  by  the  judiciary.  In  his  opinion,  James,  J.,  inti- 
mated that  were  the  question  one  of  common-law  usage,  interest  would 
be  allowable,  but  that  being  matter  of  executive  discretion,  the  ruling 
of  the  Secretary  in  this  respect  established  the  practice  of  the  Dei)art- 
ment.  The  opinion  of  Judge  James  on  the  merits  as  to  the  question  of 
interest  was  obiter  dictum. 

The  court  does  not  sanction  the  allowance  of  interest  on  claims 
against  the  Government. 

Gordon  v.  U.  S.,  7  Wall.,  188. 

Interest  is,  by  international  law,  only  to  be  charged  on  "damages  for 
withholding  money  which  tlie  party  ought  to  pay  and  would  not  or 
could  not." 

1  Op.,  26S,  Wirt.,  1819.     See  Geneva  award,  4  Papers  relating  to  Treaty  of 
Washington,  .'i3. 

By  many  nations  interest  is  not  allowed  at  all ;  and  by  those  whose 
laws  allow  it  among  individuals  it  is  not  allowed  in  every  case,  but  only 
when  the  particular  circumstances  make  the  allowance  a  matter  of 
equity. 

1  Op.,  550,  554,  Wirt,  182:2.     See  Mr.  Jefferson's  letter  to  Mr.  Hammond,  1  Wait's 
St.  Pap.,  304. 

The  Government,  which  is  always  to  be  presumed  to  be  ready  and 
willing  to  discharge  its  obligations,  ordinarily  pays  no  interest;  yet 
from  considerations  of  state  policy  it  has  sometimes  allowed  it,  as  in 
the  case  of  claims  under  the  act  of  1814.     (6  Stat.  L.,  139.) 

5  Op.,  10.'),  138;  Johnson,  1841). 

To  same  effect  see  5  Op.,  227,  Johnson,  1850;  ibid.,  399,  Crittenden,  1851. 

But  as  a  general  rule  the  United  States  does  not  pay  interest  on  any 
debts  of  the  Government,  the  only  exceptions  being  cases  where  the 
Government  stipulates  to  pay  interest,  as  in  i)ublic  loans,  ami  where 
interest  is  given  by  act  of  Congress  expressly,  either  by  the  name  of 
interest  or  by  that  of  damages. 
7  Op.,  523;  Gushing,  1855. 

Acts  of  Congress  authorizing  the  setthMucnt  of  claims  according  to 
''equity"  or  "equity  and  justice"  do  not  give  interest  ;  for,  as  between 
private  individuals,  there  is  no  material  difference  in  tiiis  respect  be- 
Ibid. 
B.  Mis.  lO'J— VOL.  II ir>  700 


§  246.]  CLAIMS.  [chap.  IX 

tween  equity  and  law,  and  that  expression  does  not  change  the  result 
'as  regards  the  Government. 

The  following  documents  may  be  referred  to  in  this  connnection: 

Demand  of  Spain  for  interest  on  the  amount  i)ai(l  by  United  States  under  the 

9th  article  of  the  treaty  of  1819,  President  Hayes's  messa;;e  of  Mar.  1,  1880, 

Senate  Ex.  Doc.  101  and  House  Ex.  Doc.  52,  4(Jth  Conj?.,  2d  .sess. 

Correspondence  respecting  the   payment  of  interest  upon  claims,    President 

Hayes's  message  of  May  13,  1880,  Senate  Ex.  Doc.  120^,  4Gth  Cong.,  2d  scss. 

Report  in  favor  of  paying  the  inisettled  chiinis,  and  for  the  payment  of  interest. 

Feb.  14,  1881,  House  Kep.  '227,  4()th  Cong.,  3d  sess. 
[That  the  subject  of  United  States  paying  interest  is  a  matter  to  be  detcr- 
miued  by  the  Executive  and  not  Congress,  Senate  Rep.  922,  46th  Cong., 
:M  sess.  ;  Senate  Mis.  Doc.  47,  47th  Cong.,  1st  sess.] 
Report  in  favor  of  ai?king  the  President  whether,  in  his  opinion,  the  9th  article 
of  the  treaty  of  1819  has  been  fully  executed ;  and  also  whether,  in  his 
opinion,  any  further  legislation  is  necessary,   House  K.  18(U),  4Tth  Cong 
1st  sess. 
As  to  interest  on  claims  due  foreigners,  .see  Cong.  Kecord.  Fib   ">,  H87,  for  de- 
bate in  House. 
On  the  subject  of  interest,  reference  is  made  to  the  following  rulings  of  Mr.  Law- 
rence, 1st  Comptroller  of  the  Treasury  (1880-1885).     The  citations  from  the 
first  two  volumes  are  from  the  second  edition  : 

General  statute  does  not  alYect  national  or  State  governments,  1  L.,  ',i'). 

Government  presumed  to  be  ready  to  pay  liabilities,  1  L.,  35. 

Law  of,  as  between  individuals,  1  L.,  8(5. 

Liability  of  a  State  to  pay,  1  L.,  8G. 

Allowed  on  claims  by  States  and  United  States,  1  L.,  lOG. 

Liability  of  Government  to  pay,  1  L.,  388. 

Liability  of  implied  contracts,  1  L.,  105. 

On  contracts,  limited  by  .statute,  1  L.,  107. 

Origin  of,  in  statute  law,  1  L.,  108. 

Right  of  creditors  of  Government  to  demand,  1  L.,  109. 

Statutes,  application  of,  to  Government  of  U.  S.  or  of  State  or  Territory,  1 
L.,  85. 

Government  not  within  statutes,  1  L.,  234. 

Accrues  only  by  contract,  statute,  or  by  usage,  2  L.,264. 

As  to,  on  money  held  till  close  of  litigation,  2  L.,  459. 

As  to,  on  money  paid  after  long  delay  without  suit,  2  L.,471. 

As  to,  on  money  required  to  be  paid  by  contract,  2  L.,  451. 

As  to,  on  money  required  to  be  paid  by  statute,  2  L.,  459. 

As  to  paying,  to  intended  beneficiary,  2  L.,  201. 

As  to  practice  of  charging,  2  L.,  470. 

Considered  as  damages,  2  L.,  46.3. 

On  judgments  in  favor  of  Government,  2  L.,  459. 

Allowance  of,  by  Departments  ;  4  L.,  575. 

Liability  of  Government  to  pay,  2  L.,  459;  4  L.,  220. 

Liquidation  of,  4L.,  240. 

Poyment  of:  United  States  pays  no  interest  on  claims,  whether  arising  out  of 
contracts  or  otherwise,  except  in  exceptional  cases  or  on  express  statute 
(e.  g.  public  loans),  5  L.,  495. 

Usages  as  to,  between  private  persons,  are  not  generally  applicable  to  United 
States.     Reasons  for  rule,  5  L.,  496,497. 

Arising  by  usage  or  contract:  Difierence  as  to  interest  arising  (1)  by  us.igoor 
(2)  on  contract,  0  L..  143,  note. 

"When  paynble,  and  when  not  payable,  oij  claims,  6  L.,  137,  146,  149. 

700 


CHAP.  IX.]  LIABILITY    FOR    ABANDONING    CLAIM.  [§  247,  248. 

XV.  DAMAGES. 

Remote,  not  axlowable. 

§  247. 

By  the  Geneva  tribunal  the  distinction  between  iaimediatc  and  re- 
mote (or  consequential)  damages  was  maintained  ;  the  hitter  being  Jield 
not  to  be  properly-  chargeable. 

Infra.  ^  402ff.     See  supra,  ?$  loO^r,  22m.     Sustained  by  President  Woolsey  and 
Hon.  R.  C.  Winthrop  in  articles  on  the  Ameri  an  case. 

A  party  whose  house  was  destroyed  in  Florida,  so  as  to  give  him  a 
claim  for  its  loss,  cannot  receive,  in  addition,  indemnity  for  extraordi- 
nary expenses  incurred  by  him  in  taking  up  his  residence  in  another 
place. 

G  Op.,  530,  Cusliing,  I80-I. 

"  The  duty  of  making  compensation  to  individuals  whose  ])rivate 
])roper1y  is  sacrificed  to  the  general  welfare  is  inculcated  bj'  foreign 
juiists,  as  correlative  to  the  sovereign  riglit  of  alienating  those  things 
which  are  not  included  iu  the  eminent  domain,  but  this  duty  must  have 
its  limits.  No  Government  can  be  sup])osed  to  be  able,  consistently 
with  the  welfare  of  the  whole  community,  to  assume  the  burden  of 
losses  produced  by  conquest,  or  the  violent  dismemberment  of  the  iState. 
Where,  then,  the  cession  of  territory  is  tiie  result  of  coercion  and  con- 
quest, forming  a  case  of  imperious  necessity  beyoud  the  power  of  the 
state  to  control,  it  does  not  impose  any  obligation  upon  the  Govern- 
ment to  indemnify  those  who  may  suffer  a  loss  of  property  by  the  ces- 
sion." 

Wheat.,  Int.  Law,  pt.  iv,  ch.  iv,  §  2.     As  to  necessity,  sec  supra,  ^^  oO,  222ff. 

General  Ilalleck,  after  citing  the  above  (1  Baker's  Halleck,  25G),  says : 
"The  history  of  the  State  of  iJ"ew  York  furnishes  a  strong  illustration 
of  tbis  rule  of  public  law.  The  people  of  tbe  territory  now  couiposing 
the  State  of  Vermont,  separated  from  New  York  and  erected  that  ter- 
ritory into  a  separate  and  independent  State.  Individual  citizens 
wliose  property  would  be  sacrificed  by  the  event,  claimed  com])ensation 
of  New  York.  The  claim  was  rejected  on  the  ground  that  the  inde- 
pendence of  Vermont  was  an  act  of  force  beyond  the  ])ower  of  New 
York  to  control,  and  equivalent  to  a  conquest  of  that  territory." 

XVI.  HOME  GOVERNMENTS  LIABILITY  FOR  ABANDONING  CLAIM. 

§  248. 

A  Government  which  neglects  ])roperly  to  present  the  claim  of  one 
of  its  citizens  to  a  foreign  Government,  in  consequence  of  which  such 
claim  is  lost,  is  not  necessarily  bound  to  make  good  the  claim.  "  Tlie 
argument  of  tiie  abstract  right  is  strong,  but  as  the  justice  obtainable 
from  foreign  nations  is  at  all  times,  and  under  every  state  of  tilings,  very 
iriiperrcct,  and  as  the  only  alternative!  incases  of  denial  of. justice  is  the 
abandonment  of  the  claim  or  war,  a  nation  by  abandoning  the  claim 
after  exhausting  every  specific  ex|)i'dient  tor  obtaining  justice,  neither 
partakes  of  the  injustice  done,  nor  makes  itself  responsil)Ie  to  the  suf, 

707 


§  248.]  CLAIMS.  [chap.  ix. 

ferer;  for  war,  even  if  it  eventually  obtains  justice  for  that  sufferer, 
secures  it  by  tlie  suilerings  of  thousands  of  others  equally  unmerited 
and  which  must  ultimately  remain  unindemnilied.  And  mere  inability 
to  obtain  justice  cannot  incur  the  oblij^ation  it  is  uuable  to  enforce." 

6  J.  Q.  Adams's  Memoirs,  383.     As  to  Uopartmcut's  control  of  case,  sco  supra,  ^ 
220. 

The  United  States  are  not  bound  to  make  compensation  to  parties 
who  have  neglected  to  prosecute  their  cases  in  the  courts  having  juris- 
diction of  their  complaiuts. 

5  Op.  (Appondix),  002.  Lincoln,  1803. 


MKADE'S   CASK. 


The  chiim  of  Richard  W.  Meade,  which  was  presented  to  the  Gov- 
ernment of  the  United  States  in  1821,  and  which  was  before  Cougress 
for  a  series  of  successive  years,  was  originally  against  the  Government 
of  S[)aiii,  and  was  based  on  losses  incurred  by  him  in  business  dealings 
with  the  Government  of  Spain,  ])rior  to  the  signature  of  the  treaty  of 
February  1.'2,  1819.  By  that  treaty  it  was  ])rovi(led  as  a  ])art  equivalent 
for  the  cession  of  Florida,  that  the  United  States  should  renounce  all 
claims  of  citizens  of  the  United  States  upon  the  Spanish  Government, 
"statements  of  which,  soliciting  the  interposition  of  the  Government 
of  the  United  States,  had  been  presented  to  the  Department  of  State, 
or  to  the  minister  of  the  United  States  in  Spain,  since  the  date  of  the 
convention  of  1802,  and  until  the  signature  of  the  treaty."  The  United 
States  assumed  these  debts,  and  agreed  by  the  treaty  to  appropriate 
$5,0(10,000  to  their  i)ayment.  The  treaty  provided  for  a  board  of  com- 
missioners to  "ascertain  the  full  amount  and  validity  of  the  claims  thus 
assumed  by  the  United  States."  The  board  so  constituted  was  to  con- 
vene at  Washington,  and  within  three  years  "to  decide  upon  the 
amount  and  validity  of  all  the  claims"  which  were  thus  assumed.  Mr. 
Meade's  claims  having  been  i)resented  in  due  time  to  the  Department  of 
State,  and  also  to  the  United  States  minister  at  ]\Iadri(l,  fell  within  the 
category  of  claims  which  could  be  ])resented  to  the  commission.  These 
claims,  before  the  treaty  was  ratified,  but  after  the  signature  by  the  ne- 
gotiators of  the  contracting  parties,  were  examined  and  audite«l  by  the 
Spanish  Government,  and  an  order  made  by  that  Government  for  their 
l)aymeut  out  of  the  royal  treasury.  Mr.  Meade  appeared  before  the 
commissioners  who  met  at  Washington,  and  maintained  not  only  that 
his  claims  were  among  those  protected  by  the  treaty,  but  that  he  was 
"entitled  to  a  substantive  aud  full  satisfaBtion,  whatever  may  be  the 
pro  rata  allowance  to  the  general  mass  of  the  claimants."  The  commis- 
sioners had  at  first  doubts  as  to  whether  they  had  jurisdiction  of  the 
case.  They  applied  to  the  Secretary  of  State  for  advice ;  and  on  March 
9,  1822,  were  informed  by  the  Secretary,  under  the  President's  direc- 
tion, that  claims  for  contracts  Tvere  not,  in  the  contemplation  of  the 
Government  intended  to  have  been  shut  out  from  the  ])urview  of  the 
treaty.  ]\Ir.  Meade's  claims  falling  in  part  under  this  head,  they  were  all 
admitted  for  consideration  by  the  commission,  with  the  qualification  that 
the  certilicate  of  assessment  given  by  the  Spanish  Government,  as  above 
stated,  Avas  not  admissible  to  prove  them.  Mr.  Meade  then  applied  to 
the  Spanish  Government  for  the  original  vouchers.  This  was  refused  on 
the  ground  that  the  rejection  of  the  Spanish  Government's  certificate 
by  the  commission  was  not  only  a  violation  of  the  rule  that  Govern- 
ment certificates  of  records  or  of  the  results  of  records  are  interuatiou- 
70S 


CHAP.  IX.]  LIABILITY    FOR    ABANDONL^G    CLAIM.  [§  248. 

ally  admissible,  but  tbat  such  a  rejection  was  an  "iuvsult"  to  Spain. 
The  comuiissiou,  however,  iu  April,  18li3,  reaffirmed  their  rejection  of 
the  Spanish  certificate,  but  advised  a  renewal  of  the  call  on  Spain  for 
the  orioinal  documents.  Negotiations  with  Spain  for  the  surrender  of 
the  papers  were  again  opened,  and  the  Spanish  Government  consented 
at  last  to  luruish  them.  But  this  was  too  late  to  enable  the  i)apers  to 
be  presented  to  the  commission,  which,  on  May  29, 1824,  ten  days  before 
the  expiration  of  its  term,  rejected  Mr.  Meade's  claims  for  want  of  evi- 
dence. Mr.  Meade  forthwith  applied  to  Congress  lor  relief,  asking  that 
a  special  court  be  constituted  for  the  trial  of  his  claim. 

See  Senate  Doc.  409,  18tli  Cong.  2(1  sess.,  5  Am.  St.  Pap.  (For.  Rcl.),  752;  House 
Doc.  46r>,  20th  Cong.  1st  sess.,  6  Am.  St.  Pap.  (For.  Rel.),  777.  Character- 
istic antagonistic  comments  ou  Meade's  case  will  be  found  in  Mr.  J.  Q.  Adams' 
Memoirs,  IV,  104,  14H,  251 ;  VI  ibid.,  234,  272,  300,  30t),  377,  511. 

The  points  of  international  law  on  which  Mr.  Meade  relied  are  stated 
at  large  in  an  opinion  by  Mr.  Horace  Biuney,  of  December  28,  1821. 
From  this  opinion  the  following  passage  is  taken  •. 

"  Jt  has  been  already  stated  that  the  case  of'Mr.  INIeade  is  not  one 
which,  by  involving  a  national  wrong,  made  the  United  States  a  party 
and  gave  her  authority  to  make  it  the  subject  of  negotiation  and  com- 
l)romise.  This  may  be  the  law  in  regard  to  public  or  national  wrongs, 
among  which  are  to  be  placed  the  claims  enumerated  in  the  first  four 
clauses  of  the  9th  article,  but  private  property  and  a  claim  to  redress 
for  a  private  wrong  are  not  subjects  of  national  negotiation  and  com- 
promise. If  a  nation  surrenders  or  compromises  these,  she  must  do  it 
either  by  virtue  of  her  own  sovereign  power  or  by  authority  derived 
from  the  individual  proprietor,  and  if  no  authority  to  compromise  has 
been  given  by  Mr.  Meade,  as  1  have  endeavored  to  show,  then  the  sur- 
render is  to  be  supported  only  by  the  sovereign  power  before  spoken  of. 

•'  The  case  of  sovereign  power  laicfidly  applied  to  the  transfer  of 
]irivate  i)roperty  or  to  the  extinguishment  of  such  a  ])rivate  claim  as 
Mr.  Meade's  is  without  a  doubt  a  case  of  national  obligation  to  ])ay 
an  equivalent  to  the  private  i)roi)rietor  or  creditor.  Whether  we  refer 
to  the  doctrine  of  our  own  Constitution  or  to  the  principles  of  ])ublic 
law,  the  result  is  the  same. 

"'Private  proj)erty  shall  not  be  taken  for  i)ublic  use  without  just 
compensation.'  This  is  the  language  of  tlie  fifth  article  of  the  amend- 
ments to  the  Constitution  of  the  United  States.  The  necessity  of  this 
article  may  be  questioned,  for  it  says  no  more  than  is  implied  as  a 
fundaniental  restraint  upon  the  public  use  of  private  property  in  the 
constitution  of  every  civilized  i)eoi)le,  but  it  serves,  at  least,  to  give  the 
sanction  of  an  emphatic  public  assent  to  what  otherwise  might  have 
been  exposed  to  discussion ;  and  it  is  a  particular  pledge  of  the  national 
faith  for  the  indemnity  of  every  American  citizen  who  maj'  be  in  the 
predicament  referred  to. 

"The  language  of  the  most  approved  writers  upon  public  law,  in  their 
remarks  upon  the  exercise  of  the  eminent  domain,  is  to  the  same 
effect. 

"Grolius  is  clear  to  this  ])oint:  'But  we  must  also  observe  this,  that 
a  king  may,  two  ways,  deprive  his  subjects  of  their  rights,  either  by 
way  of  jiunishmcnt  or  by  \iituc  of  his  ciiiincnt  domain.  Ibit  if  he  do 
it  the  last  way  it  must  be  for  some  public;  advantage,  and  then  the  sub- 
ject oiighl;  to  iecei\'e,  if  possil)h',  a  jiitit  conijxnsation  for  the  loss  he 
sullers  out  of  the  common  stock.'  {(.Jrot.  War  and  l*eace,  .'J.'i,'},  b.  2,  ch. 
14,  §  7.) 

700 


§  248.]  CLAIMS.  [chap.  IX. 

"  Tho  &aiuo  writer  elsewhere  remarks :  *  This,  also,  is  ofteu  disputed, 
what  rij^lit  kinj^s  have  to  dispose  of  the  floods  of  private  men  to  |»ro(uire 
a  pence  who  have  no  other  ])()wer  over  llie  <;oo(ls  of  their  subjects  than 
as  they  are  kin^is.  1  liave  already'  said  that  the  state  has  an  eminent 
rij^ht  of  pioperty  over  the  j^oods  of  the  subjects,  so  that  the  state,  or 
those  that  represent  it,  may  make  use  of  them,  and  even  destroy  and 
alienate  them,  not  only  upon  an  extreme  necessity  which  allows  to 
private  persons  a  sort  of  rij^ht  over  men's  goods,  but  for  the  ])ublic 
beuetit,  which  ought  to  be  preferred  to  any  n)an\s  i)rivate  interest,  ac- 
cording to  the  intention,  reasonably  i)resumed,  of  those  who  first  en- 
tered into  civil  society.  To  which  we  must  add  that  the  state  is  ()l)liged 
to  repair  the  (Jamofjcs  sustained  by  any  subject  on  that  account  out  of 
the  |)ublic  stock  ;  so  that  lie  himself,  who  hath  sustained  tho  loss,  con- 
tribute if  it  be  uecessarv,  according  to  his  quota,  to  the  discharge  of 
that  public  debt:    {Ibid.,^mi,  b.  3,  ch.  20,  §  7.) 

"Tbe  language  of  Putfendorf  is  as  follows:  'What  i)Ower  tlie  com- 
monwealth hath  to  excuse  the  goods  {condonarc  bona)  of  the  private 
subject  ui)on  a  pacification  must  be  discovered  from  the  nature  of  the 
transcendental  i)r()i)riety  upon  the  force  of  which  the  goods  and  fortunes 
of  private  men,  whatever  title  purchased  or  ])ossessed  by,  may  be  given 
up  whenever  the  necessities  of  the  state  and  public  interest  I'equire  it. 
But  with  tbis  consideration,  that  the  state  is  obliged  to  malxe  f/ood  such 
losses  to  the  subject  out  of  the  ])ublic  revenues,  either  immediately,  or 
at  least  as  soon  as  it  may  be  able.  l>ut  whether  a  particular  subject's 
goods  ought  to  be  excused  or  taken  from  him  must,  in  a  monarchy,  be 
determined  by  the  j^nnce,  and  the  whole  body  of  the  subjects  upon  his 
command  is  obliged  to  onalc  satisfaction  to  the  person  that  has  sus- 
tained losses  upon  the  ])ublic  account  beyond  his  just  proportion.-  (Pufl"., 
b.  8,  ch.  8,  §  3  (4th  ed.),  Dr.  Kennett's  translation.) 

"He  says,  in  another  part  of  the  same  book :  'But,  however,  without 
dispute  they  that  have  lost  or  sacrificed  their  fortunes  to  the  jmblic 
safety  in  such  extremities  ought  to  have  a  restitution  or  satisfaction 
made  to  them,  as  far  as  possible,  by  the  whole  community.'  (Book  8,  ch. 
5,  §  7 :  On  the  transcendental  propriety,  its  origin  and  necessity.) 

"  Vattel  says:  'If  the  nation  disposes  of  the  possessions  of  an  indi- 
vidual, the  alienation  will  be  valid  for  the  same  reason;  but  justice 
demands  that  this  individual  be  recompensed  out  of  the  public  money.' 
(Book  1,  ch.  22,  §  244.) 

"And  again  :  'The  necessity  of  making  a  peace  authorizes  the  sov- 
ereign to  dispose  of  things  even  belonging  to  private  ])ersons,  and  the 
eminent  domain  gives  him  this  right.  But  these  cessions  being  made 
for  the  common  advantage,  the  state  is  to  indemnify  the  citizens  who  arc 
sufferers  by  them.'     (B.  4,  ch.  2,  §  12.) 

"This  language,  originally  and  always  that  of  reason,  has  now  be- 
come the  language  of  authority,  to  which  no  nation  is  superior  ;  the  con- 
sciences of  all  being  bound  by  what  is  so  universally  just,  and  their 
conformity  being  required  by  the  uniform  i)ractice  of  the  civilized  world. 

"If  the  United  States  have  extingusbed  ]\Ir.  Meade's  claims  upon 
Spain  by  virtue  of  their  own  sovereign  power,  call  it  the  exercise  of  emi- 
nent domain,  or  the  taking  of  private  i)roperty  for  public  use,  or  by  any 
other  name,  the  conclusion  is  not  to  be  resisted  that  they  owe  him  a 
just  satisfaction,  that  they  are  bound  to  repair  his  damages,  to  malcgood 
his  losses,  to  make  him  restitution,  to  indemnify  him,  or  make  him  whole. 
It  would  be  in  violation  of  the  spirit  as  well  as  the  letter  of  the  rule  to 
impose  upon  him  anything  less  than  indemnity  and  satisfaction}  to  re- 

710 


niAP.  IX.]  LIABILITY    FOR   ABANDONING    CLAIM.  [\N  248. 

(jiiiie  him  to  participate  with  others  in  the  divisiou  of  an  iuadcqnate 
siiui,  and  to  apply  to  bis  case  a  scale  that  may  be  well  enough  gradu- 
ated for  claims  which,  uuder  all  circumstances,  are  subject  to  national 
control,  but  is  a  wholly  unlit  measure  of  claims  surrendered  by  virtue 
of  eminent  domain,  and  by  that  surrender  become  a  public  debtJ'^ 

4  Am.  St.  Pap.  (For.  Eel.),  793. 

iMr.  Meade's  claim  came,  under  an  act  of  Congress,  before  the  Court 
of  Claims  in  the  December  term  of  18GG.  From  the  proofs  there  sub- 
mitted it  appeared,  in  addition  to  the  lacts  above  stated,  that  on  the 
trial  before  the  junta  Mr.  Meade  put  in  evidence  and  surrendered  all 
his  vouchers  and  evidences  of  indebtedness.  These  were  canceled 
and  tiled  in  the  hnance  department  of  Si)ain.  The  Cortes  determined 
to  provide  for  the  payment  of  the  decree.  They  were,  however,  informed 
by  the  Spanish  secretary  of  foreign  affairs  and  by  the  American  min- 
ister at  Madrid  that  if  the  treaty  of  1819  were  ratified  and  certain  pri- 
vate grants  in  Florida  were  annulled,  the  United  States  would  pay 
Meade's  claim.  They  accordingly  annulled  the  private  grants;  Spain 
ratified  the  treaty;  the  United  States  accepted  the  ratification  and  ac- 
quired thereby  Florida,  free  from  private  grants.  While  the  final  ac- 
ceptance of  the  treaty  was  under  consideration,  Mr.  Meade  notified  the 
President  and  Senate  that  if  provision  was  not  made  for  the  full  and 
immediate  payment  of  his  claim,  he  preferred  to  romain  a  creditor  of 
Spain,  and  objected  to  having  his  claims  appropriated  by  the  United 
States.  Xo  such  provision  was  made,  and  he  was  sent,  with  other  claim- 
ants, before  a  commission  established  under  the  treaty.  The  commis- 
sioners refused  to  recognize  the  Spanish  decree,  and  required  him  to 
produce  the  original  vouchers.  The  Government  sustained  the  com- 
missioners in  their  demand.  Spain,  however,  refused  to  deliver  them, 
and  the  commission  expired.  The  United  States  paid  to  other  claimants 
the  $5,000,000  provided  for  by  the  treaty.  Mr.  Meade's  claim  was, 
therefore,  lost  by  the  refusal  of  the  United  States  to  recognize  the 
Spanish  decree,  and  of  Spain  to  furnish  the  original  vouchers.  By  the 
convention  of  1834  (8  Stat.  L.,  400)  the  United  States  again  released 
Spain  from  all  claims  of  American  citizens. 

On  these  facts  the  following  conclusions  were  reached  by  the  Court 
of  Claims: 

"  I.  The  Government  may  take  private  property  for  public  use  by  the 
terms  of  a  treaty,  and  may  release  the  choscs  in  action  of  American  citi- 
zens to  a  foreign  Government. 

"A  debt  due  to  an  American  citizen  from  a  foreign  Government  is  as 
much  property  as  houses  and  lands,  and  when  taken  for  public  use  is  to 
be  paid  in  the  same  manner. 

'•A  release  by  the  United  States  to  a  foreign  Government  (in  part 
consideration  of  a  cession  of  territory)  of  an  indebtedness  to  an  A.merican 
citizen,  acknowledged  to  be  valid,  is  a  taking  of  ])rivate  i)roi)erty  for 
public  use.  But  where  a  special  mode  of  obtaining  compensation  is 
designated  by  statute  or  by  treaty,  or  where  the  power  of  assessing  or 
(h'ciding  is  lodged  in  a  special  tribunal,  the  remedy  designated  can 
alone  be  ])ursue(l  and  no  action  therefor  can  be  maintained  in  this 
court. 

7U 


§  248.]  CLAIMS.  [chap.  IK. 

"11.  The  commission  establislit-d  by  llie  fioaty  with  S])aiii  of  1819 
(8  Stat.  L.,  252)  was  a  special  tribunal,  liavinj;-  exchisive  Jurisdiction  of 
claims  ari-singf  under  the  treaty,  and  no  ollur  court  can  concct  its  mis- 
takes or  revise  its  decision. 

"III.  The  commission  established  by  the  Spanish  treaty  of  1819(8 
Stat.  L.,  252)  had  jurisdiction  of  a  claim  ibnnded  on  the  award  or  decree 
of  a  Spanish  junta  rendered  suhsequcnt  to  the  dale  of  the  treaty,  even 
thouj^h  it  embraced  interest  to  the  day  of  its  date,  where  tlie  orij^inal 
claim  existed  i)rior  to  the  date  of  the  treaty  and  was  embraced  in  its 
terms." 

iMciulc'fl  case,  2  Nott.  &  IT.,  2'24. 

On  error  to  the  Supreme  Couit  of  the  United  States,  the  following 
points  were  decided  by  that  tribunal : 

"  I.  Tlie  claims  of  American  citizens  against  Spain,  for  which,  by  the 
convention  (subsequently  becoming  the  treaty)  of  February  22,  1819, 
the  United  States  undertook  to  make  satisfaction  to  an  amount  not  ex- 
ceeding $5,000,000,  wore  such  claims  as,  at  the  date  of  the  convention, 
were  iinliquidatcd,  and  statements  of  whicli  had  been  presented  to  the 
Department  of  State  or  to  the  minister  of  the  United  States.  And 
wiihin  this  class  on  the  said  22d  of  February  were  the  claims  of  the 
late  Richard  W.  Meade,  and  this  was  the  only  class  that  the  commis- 
sioners appointed  subsequently  on  the  ratification  of  the  treaty  to  pass 
upon  claims  had  power  to  pass  upon. 

"2.  This  convention,  as  signed  February  22,  1819,  subject  to  ratifica- 
tion within  six  months,  though  it  was  not  ratified  within  the  time  stipu- 
lated, was  never  abandoned,  thou<;h  some  expressions  in  the  notification 
of  August  21,  1819,  by  the  United  States  to  Spain  (notifying  to  that 
Government  that,  after  the  next  day,  'as  the  ratifications  of  the  conven- 
tion will  not  have  been  exchanged,'  all  the  claims  and  pretensions  of 
the  United  States  will  stand  in  the  same  situation  as  if  that  convention 
had  never  been  made)  indicated  that  the  United  States  might  be  in- 
duced to  refuse  to  carry  it  into  effect. 

"3.  This  notification  did  not,  by  the  non-ratification  within  the  six 
months,  make  revocable  the  power  which  citizens  of  the  United  States, 
by  filing  their  claims  with  ir,  had  given  their  Government  to  make  re- 
clamations against  Spain  in  their  behalf,  nor  did  Mr.  Meade  in  point  of 
fact  revoke  the  power  which  he  had  so  giv^en  his  Government. 

"4.  Mr.  Meade  having  subsequently  to  the  appointment  of  commis- 
sioners presented  to  them  his  claims,  not  in  an  unliquidated  form,  but 
in  the  shape  of  a  debt  acknowledged  by  Spain  in  a  judgment  against  it 
given  by  a  royal  junta,  or  special  judicial  tribunal  of  that  country,  made 
after  the  above-mentioned  notification  by  the  United  States,  the  commis- 
sioners properl J'' rejected  the  claims  as  thus  made.    They  did  not  reject 

712 


CHAP.  IX.]  LIABILITY    FOR   AMKDONtXG   CLAIM.  [§  248. 

his  claims  in  their  unliquidated  formj  and  as  filed  previously  to  the  con- 
vention in  the  Deijartmeut  of  State  and  with  the  American  minister. 

'•a.  The  fact  that  before  the  said  commission  rejected  the  claim  of 
Mr.  Meade  in  the  form  in  which  he  had  presented  it — the  form,  namely, 
of  an  award  or  judgment  by  a  Spanish  tribunal  for  a  sum  certain— ho 
requested  the  Government  of  the  United  States  to  procure  from  the 
Spanish  Government  his  original  vouchers  and  evidences  of  debt,  under 
a  clause  of  the  treaty  which  obliged  the  Spanish  Government  to  furnish, 
at  the  instance  of  the  said  commissioners,  all  such  documents  and  eluci- 
dations as  might  be  in  their  possession  for  the  adjustment  of  the  unli- 
quidated claims  provided  for  b}'  the  treaty,  does  not,  even  assuming 
that  it  shows  that  he  meant  to  present  his  claims  in  an  unliquidated  form, 
show  any  cause  of  action  against  the  United  States  over  which  the  Court 
of  Claims  could  exercise  jurisdiction. 

"C.  The  award  of  the  tribunal  of  the  Spanish  Government  in  favor  of 
]\Ir.  Meade,  made  on  the  19th  May,  1820,  was  not,  in  that  form,  included 
by  the  5th  article  of  the  convention  of  February  22,  1819,  renouncing 
certain  unliquidated  claims  then  existing. 

"  7.  There  having  been  no  evidence  in  a  finding  of  the  Court  of  Claims 
that  an  assurance,  which  that  court  found  as  a  matter  of  fact  had  been 
given  by  the  minister  of  the  United  States  at  the  court  of  Madrid  to 
the  Government  of  Spain,  that  a  debt  due  by  the  last-named  Govern- 
ment to  ^Ir.  ;Meade  would  certainly  be  paid,  if  a  treaty  whose  ratifica- 
tion had  been  suspended  was  ratified,  and  which  treaty  was  afterwards 
ratified,  was  given  in  pursuance  of  any  instructions  from  the  President 
or  by  virtue  of  any  authority  from  the  United  States,  the  said  assurance 
is  to  bo  regarded  as  having  been  given  without  authority,  and  therefore 
to  be  held  void. 

"8.  This  court  does  not  agree  with  the  Court  of  Claims  in  its  opinion 
that  on  the  facts  found  by  it,  the  United  States,  by  the  acceptance  of 
the  treaty  of  Spain  of  February  22, 1819,  and  the  cession  of  the  Floridas, 
unencumbered  by  certain  private  grants,  to  a  recognition  of  which  as 
valid  our  Government  had  objected,  appropriated  the  property  of  Mr. 
Meade,  and  that  ho  acquired  a  good  claim  against  them  for  $373,879.88, 
for  which  they  were  not  liable  legally  and  judicially  except  by  and 
through  the  investigation,  allowance,  and  award  of  the  commissioners 
a])pointcd  under  the  treaty.  But  they  do  agree  with  that  court  in  the 
opinion  that  the  decision.of  the  commissioners,  dismissing  the  claim  iu 
the  form  in  which  it  was  presented  to  them,  barred  a  recovery  iu  the 
Court  of  Claims  on  merits,  and  that  the  joint  resolution  of  Congress  of 
July  25, 180G,  referring  the  case  back  to  the  Court  of  Claims  after  it  had 
been  once  decided  adversely  to  the  claimant,  was  not  a  waiver  of  the 
i)ar,  and  did  not  allow  the  court  to  consider  it  upon  merits  irrespective 
of  the  dismissal  by  the  commissioners. 

"9.  This  court,  in  conclusion,  expresses  its  regret  that,  entitled,  as 
Mr.  Meade  clearly  was,  to  prove  his  unli(piidated  (claims  before  the  com- 

713 


§  248.1  CLAIMS.  [chap.  IX. 

missioners,  be  did  not  do  so,  and  tbey  observe  tb;it  now  tlie  only  remedy 
of  his  representatives  is  by  'an  appeal  to  the  equity  of  Congress.'" 

Meade  v.  U.  S.,  9  Wall.,  G91 ;  also  reported  in  7  C.  Cls.,  IGl. 

The  following  dociiiuents  relate  to  the  Meade  claim  : 

Ex.  Doc.  67,  15tb  Cong.,  1st  boss.;  St.  Pap.,  "Claims,"  157  (Sonato)  and  1-5 
(Ilonse),  15th  Cong.,  1st  sess. ;  4  St.  Pap.,  For.  Rel.,  ^^  144,  150 ^T;  Senate 
Docs.  11  and  -10,  IHib  Cong.,  2d  sess. ;  Senate  Doc.  GG,  19th  Cong.,  Ist  setis.  ; 
House  Rep.  174, 19th  Cong.,  Ist  sess.  ;  House  Rep.  5.S,  20th  Cong.,  Ist  sess.; 
House  Rep.  31G,  22d  Cong.,  1st  sess. ;  Hons^  Rep.  1G7,  23d  Cong.,  1st  sess.; 
Senate  Docs.  32  and  23G,  24th  Cong.,  Ist  sess. ;  Senate  Doc.  lG9,24th  Cong., 
2d  sess. ;  House  Rep.  457,  27th  Cong.,  2d  sess. ;  Ilonso  Rep.  94,  30th  Cong  , 
let  sess. ;  House  Rep.  5,  33d  Cong.,  1st  sess.  ;  Senate  Rep.  109,  33d  Cong.,  Ist 
eess. ;  C.  Cls.  Rep.  236,  36th  Cong.,  Ist  sess. ;  Senate  Mis.  Doc.  62,  3Gth  Cong., 
Ist  sosa.  ;  House  Rep.  95,3Gth  Cong.,  2d  eess. ;  House  Rep.  341,  4Gth  Cong., 
I'd  sess. 

BRIG    GENERAL   ARMSTRONG. 

The  claim  of  the  owners  of  the  brig  General  Armstrong  rests  on  the 
same  general  basis.  {Heesvjrro,  §  227  :  infra.,  §§  390,  401.)  She  was  de- 
stroyed by  British  cruisers  in  tlie  harbor  of  Fayal,  in  1814,  Portugal 
failing  to  maintain  the  neutrality  of  the  poit.  The  claim  against  Portu- 
gal by  the  United  States  having  been  referred  to  Louis  Napoleon  as 
umpire,  was  decided  against  the  United  StatevS.  (See  supra,  §  227.)  A 
claim,  based  on  the  alleged  laihire  of  the  United  States  to  maintain 
their  rights,  was  then  i)resented  to  Congress  by  the  ])arties  interested, 
and  an  approjiriation  was  made  by  Congress  lor  their  relief.  The  fol- 
lowing documents  may  be  referred  to  in  this  rehition: 

Claim  on  account  of  injuries  inflicted  on  Ihe  General  Armstrong  by  the  British 
fleet  at  Fayal,  in  ldl4 : 
Memorial  of  Samuel  C.  Raid,  with  additional  memorial,  Senate  Mis.  Doc.  21, 

45th  Cong.,  3d  sess. 
Letter  of  Secretary  of  State,  Senate  Mis.  Doc.  13,  46th  Cong.,  1st  sess. 
Memorial  of  Samuel  C.  Reid,  House  Mis.  Doc.  IG,  4Gth  Cong.,  1st  sess. 
Favorable  report,  Senate  Rep.  347,  46th  Cong.,  2d  sess. 
Favorable  reports.  House  Rep.  1014,  46th  Cong.,  2d  sess.  ;  House  Rep.  207,  47th 

Cong.,  1st  sess. 
Favorable  report,  Senate  Rep. 270,  47th  Cong.,  l«t  sess. 
A  portion  of  the  correspondence  with  Portugal  in  reference  to  the  brig  General 
Armstrong  is  given  in  the  Brit,  and  For.  St.  Pap.  for  1854-'55,  vol.  45, 403. 
See  infra,  ^^  399,401,  siqra,  $  227,  for  a  further  discussion  of  this  case. 

FRENCU   SPOLIATIONS. 

By  the  act  of  Congress  of  January  20,  1885,  entitled  "An  act  to 
provide  for  the  ascertainment  of  claims  of  American  citizens  for  spolia- 
tions committed  by  the  French  prior  to  the  31st  day  of  July,  1801,"  it 
is  i)rovided — 

•'  That  such  citizens  of  the  United  States,  or  their  legal  representatives,  as  had  valid 
claims  to  indemnity  upon  the  French  Government  arising  out  of  illegal  captures,  de- 
tentions, seizures,  condemnations,  and  confiscations  prior  to  the  ratification  of  the 
convention  between  the  United  States  and  the  French  Repul)lic  concluded  on  the  30th 
day  of  September,  1800,  the  ratifications  of  which  were  exchanged  on  the  31st  day  of 
July  following,  may  apply  by  petition  to  the  Court  of  Claims,  as  hereinafter  provided." 

714 


CHAP.  IX.]  LIABILITY    FOR    ABANDONING    CLAIM.  [§  248. 

It  is  declared,  however,  that  the  provisions  of  the  act 

"  sliall  uot  extend  to  such  claims  as  were  embraced  iu  tbe  conveutiou  between  the 
United  States  and  tbe  French  Republic  conchided  on  the  30th  day  of  Ax>ril,  1803  ;  nor 
to  such  claims  growing  out  of  the  acts  of  France  as  were  allowed  and  paid,  in  whole 
or  part,  under  tbe  provisions  of  the  treaty  between  the  United  States  and  Spain  con- 
cluded on  the  •22d  day  of  February,  1819  ;  nor  to  such  claims  as  were  allowed,  in 
whole  or  in  part,  under  the  provisions  of  the  treaty  between  the  United  States  and 
France  concluded  on  tbe  4th  day  of  July,  1831. " 

By  the  third  section  of  the  act  it  is  provided  that  the  court  shall  examine  and  de- 
termine the  validity  and  amount  of  all  claims  included  within  the  above  description, 
and  that  in  the  course  of  their  proceedings  they  should  receive  all  suitable  testimony 
on  oath  or  affirmation,  and  all  other  proper  evidence,  historic  and  documentary,  con- 
cerning such  claims  according  to  the  rules  of  law,  municipal  and  international,  and 
the  treaties  of  the  United  States  applicable  to  the  same,  and  report  such  conclusions 
of  fact  and  law  as  in  their  judgment  may  affect  the  liability  of  the  United  States 
therefor. 

By  the  fifth  section  of  the  act  it  is  made  the  duty  of  tbe  Secretary  of  State  "to 
procure,  as  soon  as  possible  after  the  passage  of  this  act,  through  the  American 
minister  at  Paris  or  otherwise,  all  such  evidence  and  documents  relating  to  the 
claims  above  mentioned  as  can  be  obtained  from  abroad." 

Under  this  chiuse  Messrs.  James  O.  Broadhead  and  Somerville  P. 
Tuck  were  appointed  commissioners  to  make  a  ])reliiiiinar.v  search  of 
the  records  of  the  French  prize  courts  or  other  French  archives,  from 
1702  to  1801, 'inclusive,  to  ascertain  whether  any  evidence  or  documents 
relating  to  the  claims  of  American  citizens  for  spoliations  committed 
by  the  French  prior  to  the  31st  of  July,  1801,  still  exist,  and  if  so,  the 
nature  and  character  thereof. 

By  si)f'cial  instructions  accompanying  this  communication  from  the 
Department  of  State,  these  commissioners  were  informed  of  their  em- 
ployment to  undertake  the  object  stated  in  the  following-  item  of  the 
consular  and  diplomatic  appropriation  act  apjiroved  February  25, 1885, 
to  wit : 

To  pay  the  expense  of  a  preliminary  search,  to  be  made  uuder  the  direction  of  tbe 
Department  of  State  of  tbe  records  of  the  French  prize  courts  or  other  French  ar- 
chives, from  1792  to  I'iOl,  inclusive,  to  ascertain  whether  any  evidence  or  documents 
relating  to  the  claims  of  American  citizens  for  spoliations  committed  by  the  French 
l)rior  to  the  31st  of  July,  1801,  still  exist,  and  if  so,  the  nature  and  character  thereof, 
the  sum  of  §5,000,  or  so  much  thereof  as  may  be  necessary,  the  same  to  be  immedi- 
ately available. 

Their  report,  giving  the  result  of  their  mission,  is  in  Senate  Ex.  Doc. 
Xo.  30,  49th  Cong.,  1st  sess. 

The  argument  for  the  claima'nts  for  the  i)iynieut  of  French  spoliations 
prior  to  1800  is  as  follows  : 

By  the  treaty  of  1778  (noticed  supra,  §148)  the  United  States  gnar- 
anti'cd,  as  i)art  of  a  defensive  alliance,  the  Fj-encjh  West  India  Islands 
against  Gn^at  Britain. 

The  war  of  17!)3,  between  France  and  Great  Britain,  was  begun  by 
Great  Britain. 

President  \VasliiiigtoM's  jMoehiiiialion  of  17!)3,  so  far  from  indicating 
any  determination  to  maintain  tiiis  guarantee,  enjoined  '-imi'artial 
conduct"  between  tin;  belligerents. 

Sec  «j/»ro,  5$  148^.;  injra,^  102. 

716 


$  248.]  CLAIMS.  [cnAp.  tx. 

J;iy's  treaty  of  NovtMiiber  10, 1704,  "ave  to  Ihitisli  cruisers  and  priva- 
teers tile  ri^lit  to  enter  United  States  ports  with  their  jirizes,  but  limited 
French  prizes  to  cases  of  entrance  by  stress  of  weather,  and  precluded 
French  i)rivateers  Ironi  selling  ])rizes  in  United  States  ports.  The  en- 
listinjx  of  Aujerican  citizens  in  the  French  army  or  navy  was  also 
forbidden.  British  cruisers,  both  before  and  after  this  treaty,  were 
admitted  into  American  waters.  This  led  to  a  suspension  of  diplomatic 
intercourse  with  France  (>ee  supra,  §§  78,  S3,  85),  and  was  followed  by 
spoliations  by  France  and  by  acts  of  reprisal  by  the  United  States. 
Thence  arose  two  cross-claims — the  United  States  apiinst  France  for 
those  spoliations,  France  against  the  United  States  for  failure  to  comply 
with  the  guarantee  of  the  treaty  of  1708,  and  for  favors  shown  to  Great 
Britain  in  contravention  of  that  treaty. 

On  August  -;7,  1703,  JMr,  Jefferson,  Secretary  of  State,  addressed  the 
following  circular  letter  to  the  merchants  of  the  United  States: 

"Coniplaiut  having  been  made  to  tbo  Government  of  the  United  States  of  some 
instances  of  unjustifiable  vexation  and  spoliation  committed  on  our  merchant  vessels 
by  the  privateers  of  the  powers  at  war,  and  it  being  possible  that  other  instances  may 
have  happened  of  which  no  information  has  been  given  to  the  Government,  I  have  it 
in  charge  from  the  President  to  assure  the  merchants  of  the  United  States  concerned 
in  foreign  commerce  or  navigation,  that  duo  attention  will  be  paid  to  any  injuries 
they  may  suffer  on  the  high  seas,  or  in  foreign  countries,  contrary  to  the  law  of  na- 
tions or  to  existing  treaties,  and  that  on  their  forwarding  hither  well-authenticated 
evidences  of  the  same,  proper  proceedings  will  be  adopted  for  their  relief." 

In  1707  ]\[essrs.  Pinckney,  iMarshall,  and  Gerry  were  sent  to  France  in 
order,  among  other  objects,  to  obtain  redress  and  to  relieve  the  United 
States  from  its  guarantee.  In  this  they  were  unsuccessful.  (See  supra, 
§§  82  _^.,  85.)  By  the  subsequent  mission  of  Messrs.  Ellsworth,  Davie, 
and  Murray  the  treaty  of  September  30,  1800,  above  quoted  {svjpra,  § 
148a),  was  negotiated. 

Subsequent  claims  for  French  spoliations  were  reserved  by  the  con- 
vention of  1800.  The  surrender  of  these  was  ]>art  of  the  consideration 
of  the  sale  of  Louisiana  in  1803.  By  the  convention  of  1803,  by  which 
this  sale  was  made,  it  was  provided  as  follows : 

"Art.  1.  The  debts  duo  by  France  to  citizens  of  the  United  States  contracted  be- 
fore September  30,  1800,  shall  be  paid  according  to  the  following  regulations  :     *     »     • 

"Art.  2.  The  debts  provided  for  in  the  preceding  articles  are  those  whose  result  is 
comi)rised  in  the  conjectural  note  annexed  to  the  present  convention,  and  which,  with 
the  interest,  cannot  exceed  the  sum  of  twenty  millions  of  francs." 

It  should  here  be  stated  that  the  "conjectural  note"  referred  to 
above  was  merely  an  inaccurate  memorandum  of  a  French  negotiation. 
By  mistake  and  through  haste  it  was^  never  actually  annexed  to  the 
convention. 

"  The  claims  comprised  in  the  said  note  which  fall  within  the  exceptions  of  the  fol- 
lowing articles  shall  not  be  admitted  to  the  benefit  of  this  convention." 

Then  follows  a  specification  of  the  claims  intended  to  be  covered  by 
the  convention.    These  are  defined  inclusively  and  exclusively — 

'•'  (1)  Inclusively. — The  preceding  articles  are  to  comprehend  no  debts  but  sucL 
as  are  due  citizens  of  the  United  States  for  supplies,  for  embargoes,  and  for  prizes  made 
at  sea." 

71G 


CIIAr.  IX  ]  LIABILITY    FOR    ABANDONING    CLAIM.  [§  248. 

The  further  requisites  of  each  class  arc  then  defined : 

"(a)  Debts  must  bave  been  coutracted  before  September  30,  1800.  Paymeut 
of  tliem  must  bave  theretofore  been  claimed  of  the  actual  Government  of  France, 
and  tbey  must  bave  been  those  for  which  the  creditors  had  a  right  to  the  protec- 
tion of  the  United  States. 

"  (6)  Prizes  comprised  only  such  cases  as  had  been  properly  appealed  within 
the  time  alleged  to  have  been  specified  in  the  convention  of  September  30,  1800, 
and  in  which  the  council   of  prizes  had  ordered  restitution,   and  in  which  the 
captors  were  insufficient. 
"(2)  Exclusively. — The  convention  expressly  excluded — 

"  (1)  Cases  in  wbich  captures  bad  been  or  should  be  coufirmed. 

"  (2)  Cases  in  which  the  claimants  had  established  houses  of  commerce  in  other 
countries  tban  the  United  States,  and  n-ere  in  partnership  with  foreigners. 

"  (3)  Cases  involving  agreements  and  bargains  concerning  merchandise  not  the 
property  of  American  citizens." 

This  summary  is  taken  from  the  statement  of  the  claimants  before 
the  Court  of  Chiims  in  1885. 

It  was  part  of  the  claimants'  case  before  the  Court  of  Claims  in  1885 
that  "the  convention  of  1803  made  no  i)rovision  for  the  payment  of  any 
of  the  claims  for  which  the  United  States  became  liable  under  the  con- 
vention of  1800,  It  was  intended  solely  to  provide  for  the  payment  of 
those  claims  for  which  France  admitted  her  liability  under  the  conven- 
tion of  1800,  and  by  reason  of  the  decisions  of  the  board  of  commis- 
sioners" therein  provided. 

The  contention  was ''that  the  United  States  have  become  liable  to 
pay  all  unsatisfied  claims  against  France  accruing-  prior  to  September 
30,  1800,  and  kept  alive  as  valid  claims  against  France  by  the  conven- 
tion of  that  date,  whether  t*hey  were  within  the  classes  designated  by 
the  convention  of  1803  or  not."  "  The  fact,"  it  was  also  urged,  '•  is  in- 
contestable that  by  the  treaty  of  1803  the  United  States  absolutely  relin- 
quished on  behalf  of  her  citizens  all  claims  retained  against  France  by 
the  treaty  of  1800." 

For  the  United  States  it  was  argued  in  reply  that  there  was  no  as- 
sumption of  the  spoliations  by  the  United  States  in  the  convention  of 
1800-01,  nor  in  the  treaty  of  1803.  So  tar  as  concerns  the  engagements 
thus  contracted  it  was  maintained  that  the  following  positions,  taken  in 
President  Pierce's  veto  message  (Mr.  Marcy  being  Secretary  of  State), 
could  not  be  controverted: 

"  First.  Neither  the  second  article  of  the  convention  of  1800,  as  it 
originally  stood,  nor  the  retrenchment  of  that  article,  nor  the  proviso 
in  the  ratification  by  the  First  Consul,  nor  the  action  of  the  Senate  of 
the  United  States  thereon,  was  regarded  by  either  France  or  the  United 
States  as  the  renouncement  of  any  claims  of  American  citizens  against 
France.     (See  supra,  §§  I'iS  ff.) 

'•Second.  On  the  contrary,  in  the  treaties  of  1803,  the  two  Govern- 
ments tooUs  up  the  question  precisely  where  it  was  left  on  the  day  of 
the  signature  of  that  of  1800,  without  suggestion  on  the  part  of  France 
that  the  claims  of  our  citizens  were  excluded  by  the  r«;trencliment  of 
the  second  arti(;le  or  the  note  of  tiie  First  Consul,  and  proceeded  to  make 
a(ii[»li!  i)rovision  for  sucli  as  Fran(;e  could  be  induced  to  admit  were 
just,  and  they  were  accordingly  discharged  in  full,  with  interest,  by 
tlic  United  States  in  tlje  stead  an<l  heliallol'  France. 

717 


§  248.]  CLAIMS.  [chap.  ix. 

"Thinl.  The  United  States,  not  bavinj;  admitted  iu  tbe  convention 
of  1800  that  they  were  under  any  obli<iations  to  France,  by  reason  of 
the  abrogation  of  tbe  treaties  of  1778  and  1788,  i)ersevered  in  this  view 
of  the  qnestion  by  the  tenor  of  the  treaties  of  1803,  and  therefon>,  had 
no  such  national  obHgatiou  to  discharge,  and  did  not,  either  in  puri)ose 
or  in  fact,  at  any  time  undertake  to  discharge  themselves  from  any  such 
obligation  at  the  expense  and  with  the  property  of  individual  citizens 
of  the  United  States. 

"Fourth.  13y  the  treaties  of  1803  the  United  States  obtained  from 
France  the  acknowledgment  and  i)aymenr,  as  part  of  the  indemnity  for 
the  cession  of  Louisiana,  of  claims  of  citizens  of  the  United  States  for 
spoliations,  so  far  as  France  would  admit  her  liability  in  the  i)remises; 
but  even  then  the  United  States  did  not  relinquish  any  claim  of  Ameri- 
can citizens  not  i)rovided  for  by  those  treaties  ;  so  far  from  it,  to  the 
honor  of  France  be  it  remembered,  she  expressly  reserved  to  herself 
the  right  to  reconsider  any  rejected  claims  of  citizens  of  the  United 
States."    (See  supra,  §§  148  #.) 

It  was  further  asserted  that  France  and  the  United  States  were  at 
war  in  1790,  and  that  this  war  extinguished  the  indebtedness  of  each 
country  to  the  citizens  or  subjects  of  the  other. 

As  to  the  question  of  such  war,  see  infra,  ^^  33:]^. 
As  to  effect  of  war  on  such  debts,  see  sujira,  $  ^-tO. 

It  has  already  been  shown  that  war  followed  by  a  tre-tty  of  peace 
which  does  not  provide  for  prior  claims  by  one  party  or  another  ordi- 
narily extinguishes  such  claims,  ^njjra,  §  240.  Whether  there  was 
such  a  war  between  the  United  States  and  France  in  1797-8  is  else- 
where considered,  supra,  §§  137,  148^;  infra.  §  333. 

The  following  passages  are  extracted  from  the  opinion  of  Judge  John 
Davis,  giving  the  judgment  of  the  Court  of  Claims  in  the  French  spolia- 
tion cases  on  May  17  and  May  24,  188G: 

"In  1827  Senator  Holmes  rei)orted  that  there  had  been  'a  partial 
war,' but  no  'such  actual  open  war  as  would  absolve  us  from  treaty 
stijiulations.  *  *  *  It  was  never  understood  here  that  this  was 
such  a  war  as  would  annul  a  treaty.'  (19th  Cong.,  2d  sess.,  Senate  Rep., 
Feb.  8,  1827,  8.) 

"  Mr.  Giles,  reporting  to  the  House  of  Representatives  as  early  as 
1802,  called  it  a  'partial  state  of  hostility  '  between  the  United  States 
and  France. 

"  Mr.  Chambers  reported  to  the  Senate  in  1828  that — 

"'The  relations  which  existed  between  the  two  nations  in  the  interral  between  the 
passage  of  the  several  acts  of  Congress  before  refened  to  and  the  convention  of  1800 
were  very  peculiar,  but  in  the  ojiiuion  of  your  committee  cannot  be  considered  as 
placing  the  two  nations  iu  the  attitude  of  a  war  which  would  destroy  the  obligations 
of  previously  existing  treaties.' 

"  Mr.  Livingston  reported  to  the  Senate  in  1830  that — 

"  'This  was  not  a  case  of  war,  and  the  stipulations  which  reconciled  the  two  na- 
tions was  not  a  treaty  of  peace ;  it  was  a  convention  for  the  putting  an  end  to  certain 
differences.  *  »  •  Nowhere  is  the  slightest  expression  on  either  side  that  a  state 
of  war  existed,  which  would  exonerate  either  party  from  the  obligations  of  making 
those  indemnities  to  the  other.     *     »     *    xhe  convention  which  was  the  result  of 

7J8 


CHAP.  IX.]  LIABILITY    FOE    ABAXDOXIXG    CLAIM.  [§  248. 

these  negotiations  is  not  only  in  its  form  clifferent  from  a  treaty  of  peace,  bnt  it  con- 
tains stipulations  ■which  would  be  disgraceful  to  our  country  on  the  supposition  that 
it  terminated  a  state  of  war.  *  *  »  Xeither  party  considered  then  they  were  in 
a  state  of  war.'     (Rep.  4, 445.) 

"  Mr.  Everett  made  a  statement  in  the  House  of  Eepresentatives  on 
the  21st  February.  1835,  in  which  he  said : 

"  '  The  extreme  violence  of  the  measures  of  the  French  Government  and  the  accu- 
mulated injuries  heaped  upon  our  citizens  would  have  amply  justilied  the  Govern- 
ment of  the  United  States  in  a  recourse  to  war;  but  peaceful  remedies  and  measures 
of  defense  were  preferred';  [and,  after  referring  to  the  acts  of  Congress,  he  adds:] 
'These  vigorous  acts  of  defense  and  preparation,  evincing  that,  if  necessary,  the  United 
States  <vere  determined  to  proceed  still  further  and  go  to  war  for  the  protection  of 
their  citizens,  had  the  happy  eliect  of  precluding  a  resort  to  that  extreme  measure  of 
redress.' 

''Finally  Mr.  Sumner  considered  the  acts  of  Congress  as  'vigorous 
measures,' putting  the  country  'in  an  attitude  of  defense;'  and  that 
the  '  painful  condition  of  things,  though  naturally  causing  great  anxiety, 
did  not  constitute  war.'"     (Eep.  Com.  41,  38th  Coug.,  1st  sess.) 

"The  judiciary  also  had  occasion  to  consider  the  situation,  and  the 
learned  counsel  for  defendants  cites  to  us  the  opinion  of  Mr.  Justice 
Moore,  delivered  in  the  case  of  Bass  r.  Tingy  (4  Ball.,  37),  wherein  the 
facts  were  as  follows :  Tingy,  commander  of  the  public  armed  ship  the 
Ganges,  had  libeled  the  American  ship  Eliza,  Bass  master,  setting  forth 
that  she  had  been  taken  on  the  high  seas  by  a  French  privateer  the  31st 
March,  1799,  and  retaken  by  him  late  in  the  following  April,  wherefore 
salvage  was  claimed  and  allowed  below.  Upon  api)eal  the  judgment 
was  affirmed.     Each  of  the  four  justices  present  delivered  an  opinion. 

"Justice  Moore,  ausweriqg  the  contention  that  the  word 'enemy' 
could  not  be  applied  to  the  French,  says  : 

"  'How  can  the  character  of  the  parties  engaged  in  hostility  or  war  be  otherwise 
described  than  by  the  denomination  of  enemies?  It  is  for  the  honor  and  dignity  of 
both  nations,  therefore,  they  should  be  called  enemies;  for  it  is  by  that  description 
alone  that  either  could  justify  or  excuse  the  scene  of  bloodshed,  depredation,  and 
confiscation  which  has  unhappily  occurred,  and  surely  Congress  could  only  employ 
the  language  of  the  act  of  June  1'3,  1798,  towards  a  nation  whom  she  considered  as 
an  enemy.' 

"  Justice  Washington  considers  the  very  point  now  in  dispute,  saying 
(p.  40): 

"  '  The  decision  of  the  question  must  depend  upon  »  »  *  whether  at  the  time  of 
)>assing  the  act  of  Congress  of  the  2d  of  March,  1799,  there  subsisted  a  state  of  war 
between  two  nations.  It  may,  I  believe,  bo  safely  laid  down  that  every  contention 
by  force  between  two  nations,  in  external  matters,  under  the  authority  of  their 
respective  Governments,  is  not  only  war,  but  i)ublic  war.  If  it  be  decreed  in  form 
it  is  called  solemn  aud  is  of  the  perfect  kind,  because  one  v.holo  nation  is  at  war  with 
another  whole  nation,  and  all  the  members  of  the  nation  declaring  war  are  authorized 
to  commit  hostilities  against  the  members  of  the  other  in  every  place  and  under  every 
circumstance.  In  such  a  war  all  the  members  act  under  a  general  authority,  and  all 
the  rights  and  consequences  of  war  attach  to  their  condition.  But  hostilities  may 
subsist  between  two  nations  more  confined  in  its  nature  and  extent,  being  limited  as 
to  places,  persons,  and  things,  and  this  is  more  properly  termed  imperfect  war,  be- 
cause not  solemn,  and  because  those  who  are  authorized  to  commit  hostilities  act 

719 


§  248.]  CLAIMS.  [chap.  IX. 

uuder  special  autluuity  uud  c;ai  go  no  Aiitbcr  than  to  the  cxtt'iit  of  Uioir  comiuissiou. 
Still,  bowover,  it  is  pulilic  war,  because  it  is  au  oxternal  contention  by  force  between 
BOtiic  of  tbe  uiemliers  of  tlie  two  nations,  authorized  by  tbe  legitiniato  powers.  It  is 
u  war  between  the  two  nations,  thougb  all  the  members  are  not  authorized  to  commit 
hostilities  such  as  in  a  solemn  war  where  tbe  Governmout  restrain  the  general  power.' 

''Applyinu:  this  rule  lie  beld  that 'an  Amerioaii  and  French  armed 
ves.sel,  combatinj^oii  the  lii^Ii  seas,  were  enemies,'  but  athled  tliat  France 
was  not  styk'd  'an  enemy'  in  the  statutes,  because  '  the  dej;ree  (jf  hos- 
tility jneant  to  be  carried  on  was  sulliciently  described  without  dec]arin<; 
war,  or  dechuin^  that  we  were  at  war.  Such  a  declaration  by  Con<;ress 
ini.n'iit  have  constituted  a  i)ertect  state  of  war  which  was  not  intended 
by  the  Government.' 

'•Justice  (Jhase,  who  had  tried  the  case  below,  said: 

"  '  It  is  a  limited,  partial  war.  Congress  has  not  dechired  war  in  general  terms,  but 
Congress  has  authorized  hostilities  on  the  high  seas  by  certain  persons  in  certain 
cases.  There  is  no  authority  given  to  commit  hostilities  on  land,  to  capture  unarmed 
French  vessels,  nor  even  to  ca^ituro  French  armed  vessels  in  a  French  port,  and  the 
authority  is  not  given  indiscriminately  to  every  citizen  of  America  against  every 
citizen  of  France,  but  only  to  citizens  appointed  by  commissions  or  exposed  to  imme- 
diate outrage  and  violence.  *  »  »  jf  Congress  had  chosen  to  declare  a  general 
war,  France  would  have  been  a  general  enemy  ;  having  chosen  to  wage  a  part  ial  war, 
Franco  was     *     »     *     only  a  partial  enemy.' 

"Justice  Patterson  coucurretl,  holding;  that  the  United  States  and 
France  were  '  in  a  qualified  state  of  hostility' — war  ^ quoad  hoc.''  As  far 
as  Congress  tolerated  and  authorized  it,  so  far  might  we  proceed  in 
hostile  opeiations,  and  the  word 'enemy '  proceeds  the  full  length  of 
this  qualified  war,  and  no  further. 

"The  Supreme  Court,  therefore,  held  the  state  of  affairs  now  under 
discussion  to  constitute  partial  warfare,  limited  by  the  acts  of  Congress. 

"The  instructions  to  Ellsworth,  Davie,  and  Murray,  dated  October 
22,  1799,  did  not  recognize  a  state  of  war  as  existing,  or  as  ha\  ing  ex- 
isted, for  they  said  the  conduct  of  France  would  have  justified  an  im- 
mediate declaration  of  war,  but  the  United  States,  desirous  of  main- 
taining i)eace,  contented  themselves  'with  i)reparations  for  defense  and 
measures  calculated  to  defend  their  commerce.'  (Doc.  JU2,  p.  otil.) 
Yet  all  the  measures  relied  upon  as  evi<lence  of  existing  war  had  taken 
effect  i)rior  to  the  date  of  these  instructions.  So  the  ministers,  in  a 
communication  to  the  French  authoi'ities,  said,  as  to  the  acts  of  Con- 
gress, 'which  the  hard  alternative  of  abandoning  their  commerce  to 
ruin  imposed,'  that  'far  from  contemplating  a  co-oi)eration  with  the 
enemies  of  the  licpublic  [they]  did  not  even  authorize  reprisals  upon 
her  merchantmen,  but  were  restricted  simply  to  the  giving  of  safety 
to  their  own,  till  a  moment  should  arrive  when  their  sufferings  could 
be  heard  and  redressed.'     (Doc.  102,  p.  583.) 

"France  did  not  consider  that  war  existed,  for  her  minister  said  that 
the  suspensions  of  his  functions  was  not  to  be  regarded  as  a  rupture  be- 
tween the  countries,  'but  as  a  mark  of  just  discontent'  (15  November, 
179G,  1  For.  Ivcl.,  56."3),  while  J.  Bonaparte  and  his  colleagues  termed  it 
a  'transient  misunderstanding'  (Doc.  102,  p.  590),  a  state  of  'misunder- 
standing'which  had  existed  '  through  the  acts  of  some  agents  rather 
than  by  the  will  of  the  respective  Governments,'  and  which  had  not 
been  a  state  of  war,  at  least  on  the  side  of  France.     {IhuL,  010.) 

"  The  opinion  of  Congress  at  the  time  is  best  gleaned  fiom  the  laws 
which  it  passed.     The  imi)ortant  statute  in  this  counectiou  is  that  of 

720 


CHAP.  IX.]  LIABILITY    FOR    ABANDONING    CLAIM,  [§  248. 

May  28,  1798  (1  Stat.  L.,  5C1),  entitled  'Au  act  more  effectually  to 
protect  the  commerce  aiul  coasts  of  the  United  States.'  Certainly 
there  was  nothing  aggressive  or  warlike  in  this  title.     *     *     * 

''Just  complaint  was  not,  however,  confined  to  one  side,  for  we  had 
failed  in  performance  of  obligations  imposed  upon  us  by  the  treaties  of 
1778.  We  had  undertaken  a  guarantee  of  French  possessions  in  Amer- 
ica and  pledged  ourselves  that  'in  case  of  a  rupture  between  France 
;ind  England  the  reciprocal  guarantee  *  *  *  shall  have  its  full  force 
and  effect  the  moment  such  war  shall  break  out.'  (Art.  12,  treaty  of 
alliance.)  This  guarantee  was  to  endure  'forever.'  It  was  contended 
by  us  that  the  casus  fccderis  could  never  occur  except  in  a  defensive 
war.    As  Secretary  Pickering  said : 

'"The  uat  lire  of  this  obligation  is  imderstoocl  lobe  that  wlieii  a  war  really  and 
truly  defensive  exists,  the  engaging  nation  is  bonud  to  fnrnisli  an  effectual  and  ade- 
quate defense,  in  co-operation  with  tlie  power  attacked.'  (Doc.  102,  i'>7,  Pickering 
to  Pinckney  ei  al.,  July  15,  1797.) 

""Whether  the  treaty  so  limited  the  obligation,  or  whether  France  in 
her  struggle  with  the  allied  powers  was  waging  a  defensive  war,  is  not 
now  important.  France  certainly  believed  herself  entitled  to  demand 
our  aid,  and  understood  tha  casus  fccderis  to  have  occurred. 

"At  the  opening  of  the  war  France  possessed  the  fertile  islands  of 
St.  Domingo,  Martinique,  Guadeloupe,  St.  Lucia,  St.  Vincent,  Tobago, 
Deseada,  Marie  Galante,  St.  Pierre,  Miquclon,  and  Granada,  with  a  col- 
ony on  the  mainland  at  Cayenne,  and  'in  little  more  than  a  month  the 
French  were  entirely  dispossessed  of  their  West  India  i)OSsessions,  with 
hardly  anv  loss  to  the  victorious  nation.'  (Alison's  History,  vol.  3,  r». 
39G.)  ' 

"The  French  colonists  urged  us  to  intervene,  but  the  French  Gov- 
ernment thought  it  wiser  for  us  not  then  to  embark  in  the  war,  as  it 
might  diminish  their  supplies  from  Ameiica ;  they  would,  however,  they 
said,  leave  us  to  act  according  to  our  wishes,  looking  to  us  meantime 
for  financial  aid.  (I  For.  Eel.,  088.)  This  was  not  a  renunciation  of  the 
guarantee,  nor  was  it  so  regarded  here. 

"A  study  of  the  correspondence  shows  that  these  provisions  of  the 
two  treaties,  especially  the  guarantee,  constantly  hampered  our  nnnis- 
ters,  and  Jeffer.son  said  he  had  no  doubt  '  wo  sliould  interpose  at  the 
proper  time'  (4  Jeff.  Works,  102),  while  the  French  Government  dwelt 
upon  the  '  inexecution  of  the  treaties'  (1  For.  Pel.,  058),  said  '  they  had 
much  cause  of  comphiint  against  us'  {ibid.,  p.  731),  and  finally  refused 
to  receive  Pinckney  '  until  after  a  reparation  of  grievances,'  while  their 
minister  here  demanded  '  in  the  name  of  American  hoiior,  in  the  name 
of  the  faith  of  the  treaties,  the  execution  of  that  contract  which  a.ssured 
to  the  United  States  their  existence  and  which  France  regarded  as  the 
l)ledge  of  the  most  sacred  union  between  two  people  the  freest  upon 
earth.'     (1  For.  Affairs,  579  ff.) 

"The  claims  of  France,  national  in  their  natuie,  were  thus  set  up 
again  against  the  claims  of  the  United  States,  individual  in  their  incep- 
tion, but  made  national  by  their  presentation  Ihrough  the  diplomatic 
department  of  the  Government. 

"It  is  not  for  us  to  say  whether  tiie  claims  of  I-'rance  ha  1  any  validity 
in  internati(^n;d  law,  because  for  the  purpo.se  of  this  case  it  nci'd  only  be 
obserxcd  liiat  they  were  urged  in  diplomacy  with  e\ery  apparent,  belief 
tliat  the  I'lcnch  jiosiiion  was  tenable.  Whether  valid  or  not  they  were 
an  ellicient  arm  of  defense  against  our  contentions,  and  wen^  so  used 
with  ability,  skill,  :iii<l  success.     In  fact  there  is  a  recognition  of  ap- 

S.  I\Iis.  lOJ—voi,.  II p;  721 


§  248.]  CLAIMS.  [CIIAP.  IX. 

parent  justness  in  tliese  demands  found  in  the  instructions  to  the  Pinck- 
ney  mission,  wlio  -were  directed,  while  ur^in^  our  claims,  to  i)ropose  a 
substitute  lor  the  mutual  guarantee  'or  some  moditication  of  it,'  as  'in- 
stead of  troops  or  shi[)S  of  war'  'to  stipulate  for  a  moderate  sum  of 
money  or  quantity  of  proNisions  to  be  delivered  in  any  future  defensive 
war  not  exceeding  $L'Ol>,(JOO  a  year  during  any  such  war'  (2  For.  Eel., 
15a),  and  Talleyrand  on  the  other  side  told  Mr.  Gerry  (Juno  15)  that 
the  Republic  desired  to  be  restoied  to  the  rights  which  the  treaties 
conferred  upon  it,  and  through  these  means  to  assure  the  rights  of  the 
United  States.  '  You  claim  iiulemnities,'  he  said,  '  we  equally  demand 
them,  and  this  disposition  being  as  sincere  on  the  part  of  the  United 
States  as  it  is  on  its,  [the  Eepublic]  will  speedily  remove  all  the  diffi- 
culties.'    (Doc.  102,  p.  529.)     *     *     * 

"  The  French  ministers  had  frequently  mentioned  the  insuperable  re- 
imgnance  of  their  Government  to  surrender  the  claim  to  priority  assured 
to  it  iu  the  'commercial  treaty  of  1778,'  urging: 

"  'The  equivalent  alleged  to  be  accorded  by  Frauce  for  tbia  slipuhitiou,  the  meritor- 
ious ground  ou  wbicb  they  generally  represented  the  treaty  stood,  denying  stren- 
uously the  power  of  the  American  Government  to  annul  the  treaties  by  a  simple  leg- 
islative act;  and  always  concluding  that  it  was  perfectly  incompatible  with  the 
honor  and  dignity  of  Frauce  to  assent  to  the  extinction  of  a  r  ght  in  favor  of  an  en- 
emy, and  as  much  so  to  appear  to  acquiesce  in  the  establishment  of  that  right  in  favor 
of  Great  Britain.  The  priority  with  respect  to  the  right  of  asylum  for  privateers  and 
prizes  was  the  only  point  in  the  old  treaty  on  which  they  had  anxiously  insisted,  and 
which  they  agreed  could  not  be  as  well  provided  for  by  a  new  stipulation.'  (Doc.  102, 
p.  G08.) 

"  The  American  envoys  (July  23, 1800),  iu  answer  to  the  French  ar- 
guments, reducing  to  writing  the  substance  of  two  conferences,  said 
(Doc.  102,  p.  G12) : 

"  'As  to  the  proposition  of  placing  France,  with  respect  to  an  asylum  for  privateers 
and  prizes,  upon  the  footing  of  equality  with  Great  Britain,  it  was  remarked  that 
the  right  which  had  accrued  to  Great  Britain  in  that  respect  was  that  of  au  asylum 
for  her  own  privateers  and  prizes,  to  the  exclusion  of  her  enemies,  wherefore  it  was 
physically  impossible  that  her  enemies  should  at  the  same  time  have  a  similar  right. 
With  regard  to  the  observation  that  by  the  terms  of  the  British  treaty  the  rights  of 
France  were  reserved,  and  therefore  the  rights  of  Great  Britain  existed  with  such  lim- 
itation as  would  admit  of  both  nations  being  placed  on  a  footing  which  should  bo 
equal,  it  was  observed  by  the  envoys  of  the  United  States  that  the  saving  in  the 
British  treaty  was  only  of  thorightsof  France  resulting  from  her  then  existing  treaty, 
and  that  that  treaty  having  ceased  to  exist  the  saving  necessarily  ceased  also,  and  the 
rights  which  before  that  event  were  only  contingent  immediately  attached  and  be- 
came operative.' 

"  Admission  of  the  continuing  force  of  the  old  treaties  might  involve 
admission  of  France's  national  claims,  and  in  any  event  would  put  her 
ministers  into  a  most  advantageous  position,  giving  them  as  considera- 
tion, to  be  surrendered  at  her  i^leasure  in  the  new  negotiation,  what 
would  then  bo  a  vested,  existing,  and  acliuowledged  right  to  the 
guarantee,  the  alliance  and  the  use  of  our  ports.  Placed  in  this  posi- 
tion, France  would  be  without  incentive  to  action;  she  would  start  in 
the  discussion  of  a  new  treaty  with  more  surrendered  to  her  at  the  out- 
.set  than  she  had  hoped  to  obtain  at  the  conclusion,  and  all  that  she  after- 
wards gave  up  would  be  by  way  of  generous  concession.  Whatever  the 
law,  whether  the  treaties  were  or  were  not  abrogated  by  the  act  of  Con- 
gress or  the  acts  of  parties,  the  American  envoys  were  not  permitted 

722 


CHAP.  IX.]  LIABILITY    FOR    ABANDONING    CLAIM.  [§  248. 

to  admit  the  French  couteutiou,  but  were  iu  duty  boimd  to  argue  that 
tlie  treaties  were  without  contiuuing  force.  They  Ibllowed  this  course, 
sayiug : 

"  'A  treaty  beiug  a  mutual  compact,  a  paliiablo  violation  of  it  by  one  party  did, 
by  the  law  of  nature  and  of  nations,  leave  it  optional  with  the  other  to  renounce  and 
declare  the  same  to  be  no  longer  obligatory.  *  »  »  The  remaining  party  must  de- 
cide -whether  there  had  been  such  violation  on  the  other  part  as  to.justifj'  its  renun- 
ciation. For  a  wrong  decision  it  would  doubtless  be  responsible  to  the  injured  party, 
and  might  give  cause  for  war;  but  even  iu  such  case,  its  act  of  public  renunciation 
being  an  act  within  its  competence  would  not  be  a  roid  but  a  valid  act,  and  other 
nations  whose  rights  might  thereby  be  beneficially  affected  would  so  regard  it.'  (Doc. 
102,  p.  612.) 

''  After  further  argument,  they  added  that  as  it  was  the  opinion  of  the 
French  ministers  that  '  it  did  not  comport  with  the  honor  of  France'  to 
admit  the  American  contentions,  and  at  the  same  time  be  called  upon 
for  compensation,  the.y  offered  '  as  their  last  effort '  a  pro))osition  which 
suspended  payment  of  compensation  for  spoliations  '  until  France  coukl 
be  i)ut  into  complete  possession  of  the  privileges  she  contended  for,  and 
at  the  same  time  they  offered  to  give  that  security  which  a  great  pecu- 
niary pledge  would  amount  to  for  her  having  the  privilege  as  soon  as  it 
could  be  given  with  good  faith  which  might  perhaps  be  in  a  little  more 
than  two  years;  at  any  rate  within  seven.'     {Ibid. j  613.)     ♦     *     * 

"  In  August,  after  some  delay  and  apparent  friction,  the  Americans, 
saying  that  '  while  nothing  would  be  more  grateful  to  America  than  to 
acquit  herself  of  any  just  claims  of  France,  nothing  could  be  more  vain 
than  an  attempt  to  discourse  to  her  reasons  for  the  rejection  of  her  own,' 
made  the  following  propositions  {ibid.,  C23-G25) : 

"'(I)  Let  it  be  declared  that  the  former  treaties  are  renewed  and  coniirmed  and 
shall  have  the  same  effect  as  if  no  mis.undcrstandiug  between  the  two  powers  had 
iutervened,  except  so  far  as  they  are  derogated  from  by  the  present  treaty. 

"  '  (2)  It  shall  be  optional  with  either  party  to  pay  to  the  other  within  seven  years 
3,000,000  of  francs  in  money  or  securities  which  may  be  issued  for  indemnities,  and 
thereby  to  reduce  the  rights  of  the  other  as  to  privateers  and  prizes  to  those  of  the 
most  favored  nation.  And  during  the  said  term  allowed  for  option  the  right  of  both 
parties  shall  be  limited  by  the  liue  of  the  most  favored  nation.'    »     *     * 

"  The  Americans  made  a  counter  proposal,  renewing  their  offer  of 
8,000,000  francs  to  be  paid  within  seven  years  iu  consideration  that  the 
United  States  'be  forever  exonerated  of  the  obligation,  on  their  part, 
to  furnish  succors  or  aid  under  the  mutual  guarantee,'  and  that  the 
rights  of  the  French  ifepublic  be  forever  limited  to  those  of  the  most 
favored  nation.  (Ibid.,  029.)  To  this  the  French  tersely  answered 
{ibid.,  G.30) : 

"  '\Vc  shall  have  the  right  to  take  our  prizes  into  your  ports  ;  a  commission  shall 
regulate  the  indemnities  owed  by  cither  nation  to  the  citizens  of  the  other  ;  the  in- 
demnities wliich  shall  be  due  by  Franco  to  the  citizens  of  the  United  Slates  shall  be 
paid  for  by  the  United  States;  iu  return  for  which  Franco  yields  the  exclusive  privi- 
leges resulting  from  the  wjventecnth  and  twenty-second  articles  of  the  treaty  of  com- 
merce and  from  the  rights  of  the  gnaranteo  of  the  eleventh  article  of  the  treaty  of 
alliance.' 

"Matters  now  again  reached  a  halting  y)oint;  neither  side  would  yiehl; 
I'rance  acknowlcd^^ed  her  real  object  to  be  to  avoid  payment  of  indeni- 

723 


§  248.]  CLAIMS.  [chap.  IX. 

iiity,  wliile  tbe  Uuitod  States,  on  tLe  other  liand,  could  not  assent  to 
her  views  as  to  the  pjuaraiitee  and  use  of  ports.  In  considerable  heat 
tbe  ministers  i)arted.  {Ibid.,  032,  G33.)  The  next  day  the  Americans 
made  another  ell'ort,  because,  as  they  wrote  in  their  journal  {ibid.,  034), 
'being  now  convinced  that  the  door  was  perfectly  closed  a<;ainst  all 
hope  of  obt.iining-  indemnities  with  any  modilications  of  the  treaty,  it 
only  remained  to  be  determined  whether,  under  all  circuuistances,  it 
would  not  be  expedient  to  atteui])t  a  temporary  arrangement  which 
would  extricate  the  United  States  from  the  war  or  that  peculiar  state 
of  hostility  in  which  they  are  at  i)resent  involved,  save  the  inuuense 
properly  of  our  citizens  now  pending  before  the  council  of  prizes,  and 
secure,  as  far  as  possible,  our  commerce  against  the  abuses  of  ca[)tiire 
during  the  present  war;'  therefore  they  proposed  {ibid.,  035)  that  as  to 
the  treaties  and  indemnities  the  question  should  be  left  open;  that  in- 
tercourse should  be  free;  then,  with  suggestions  as  to  proi)erty  capt- 
ured and  not  delinitively  condemned,  and  i)ro[)erty  which  might  there- 
after be  captured,  they  asked  an  early  interview. 

"The  French  still  insisted  that  a  stipulation  of  indemnities  involved 
an  admission  of  the  force  of  the  treaties  {ibid.,  035-037),  and  after  argu- 
ment proposed  that  the  discussion  of  the  indemnities,  together  with  the 
discussion  of  article  11  of  the  treaty  of  alliance  and  articles  17  and  21i  of 
the  treaty  of  commerce,  be  postponed,  but  with  the  admission  that  the 
two  treaties  arr-  'acknowledged  and  contirmed  *  *  *  as  well  as  the 
consular  convention  of  1788;'  that  national  ships  and  privateers  be 
treated  as  those  of  the  most  favored  nation;  that  national  ships  be 
restored  and  paid  for,  and  that  the  'property  of  individuals  not  yet 
tried  shall  be  so  according  to  the  treaty  of  amity  and  commerce  of  1778, 
in  consequence  of  which  a  role  d''cquipage  shall  not  be  exacted,  nor  any 
other  proof  which  this  treaty  could  not  exact.'  So  after  months  of  nego- 
tiation the  French  ministers  come  back  flat-footed  upon  the  treaties  as 
still  existing,  something  which  our  representatives  were  forbidden  by 
their  instructions  to  admit.  Nevertheless  this  proposal  formed  the  text 
for  discussion,  and  upon  so  slight  a  foundation  was  built  the  treaty  of 
1800. 

"After  prolonged  negotiation,  and  after  striking  out  the  word  'pro- 
visional' in  the  name  or  description  of  tbe  new  treaty,  tbe  Ameri- 
can commissioners  signed  it,  although  with  great  reluctance,  'because 
they  were  profoundly  convinced  that,  considering  the  relations  of  the 
two  countries  politically,  the  nature  of  our  demands,  the  state  of  France, 
and  tbe  state  of  things  in  Europe,  it  was  [their]  duty,  and  for  the 
honor  and  interest  of  the  Government  and  people  of  the  United  States, 
that  [thevj  should  agree  to  tbe  treaty  rather  than  make  none.'  {Ibid., 
040.) 

''The  vital  effect  of  this  negotiation  as  explanatory  of  tbe  treaty  of 
1800,  upon  which  the  rights  of  these  claimants  are  founded,  explains 
the  rehearsal  of  its  details  during  which  tbe  so-called  ultimatum  of  our 
Government  was  abandoned  and  the  contention  of  the  French  Govern- 
ment as  to  the  existence  of  the  treaties  was  admitted.    »    *     * 

'•The  compromise  by  our  ministers,  to  which  they  were  forced  by  the 
position  of  the  French  Government,  was  contained  in  tbe  second  article, 
whicb  read: 

"  '  The  ministers  plcuipotentiary  of  tlie  two  parties  uot  being  able  to  agree  at  present 
respecting  tbe  treaty  of  alliance  of  6tb  February,  1778,  tbo  treaty  of  amity  aad  com- 
merce of  the  same  date,  and  the  convention  of  tlie  14th  of  November,  1788,  nor  upon 

724 


CHAP.  IX  ]  LIABILITY    FOR    ABANDONING    CLAIM.  [§  248. 

the  iudeuiuities  mutually  due  or  claimed,  the  iiarties  will  uegoliate  further  ou  these 
subjects  at  a  convenient  time,  and  until  they  may  have  agreed  upon  these  points  the 
said  treaties  and  conventions  shall  have  no  operation,  and  ttie  relations  of  the  two 
countries  shall  bo  regulated  as  follows.' 

"It  is  apparent  that  this  article  makes  the  treaty  temporary  and  pro- 
visional in  its  nature;  it  admits  that  the  existence  or  non-existence  of 
the  treaties  of  1 778,  with  the  liabilities  thereby  im]:)osed,  is  open  to  dis- 
cussion, and  that  the  indemuities  are  not  provided  for;  that  is,  that  the 
very  first  of  the  so-called  'ultimata 'of  Secretary  Pickering  was  tem- 
porarily abandoned.  The  Senate  advised  and  consented  to  the  ratifica- 
tion of  the  treaty  provided  this  article  be  expunged,  and  in  its  place 
the  following  article  be  inserted: 

"  'It  is  agreed  that  the  present  convention  shall  be  in  force  for  the  term  of  eight 
j-ears  from  the  time  of  exchange  of  ratifications.' 

"  Xapoleon  thereupon  consented  (July  31,  ISOl)  'to  accept,  ratify,  and 
confirm'  the  convention,  with  an  addition  importing  that  it  shoidd  be  in 
force  for  the  space  of  eight  years,  and  with  the  retrenchment  of  the  sec- 
ond article  : 

"'Provided,  That  by  this  retrenchment  the  two  states  renounce  the  respective  pre- 
tensions which  are  the  object  of  the  said  article.' 

"  The  ratifications  were  exclianged  in  Paris,  July  ol,  1801 .  The  treaty, 
with  its  addenda,  was  again  submitted  to  the  Senate,  and  in  that  form 
received  the  approval  of  that  body  (December  19, 1801)  when  it  declared 
that  it  considered  the  convention  '  fully  ratified,'  and  returned  it  to  the 
President  for  promulgation. 

"What  the  respective  pretensions  were  which  were  the  object  of  the 
second  article  does  not  admit  of  a  shadow  of  doubt.  On  the  one  hand, 
the  alleged  continuiug  existence  of  the  treaties  incidentally  involving- 
national  claims  for  past  acts  on  our  part  and  more  particularly  a  right 
to  future  i^rivileges;  on  the  other  hand,  indemnity  to  our  citizens  for 
spoliations. 

"  Our  claims  were  good  by  the  law  of  nations,  and  we  had  no  need 
to  turn  back  to  the  treaties  for  a  foundation  upon  which  to  rest  our 
arguments.  Xot  so  with  France.  Her  national  claims  must  necessarily 
rest  on  treaty  provisions,  and  the  future  privileges  she  desired  above 
all  else  could  in  no  way  be  so  easily  or  fully  secured  as  by  an  admission 
of  the  continuing  force  of  those  instruments.  She  therefore  insisted 
that  for  indemnity  we  must  give  treatj^  recognition.  This  we  abso- 
lutely refused  to  do,  and  upon  this  rock  twice  did  the  negotiations  split, 
only  to  be  renewed  by  the  patience  and  patriotism  of  our  ministers. 
After  months  of  weary  discussion  the  ])arties  stood  as  to  this  point 
exactly  where  they  started,  and  to  save  their  young  and  struggling 
country  from  further  contest  the  American  ministers  consented  to  the 
compromise.  Tlien  the  Senate  struck  the  compromise  out,  and  Fiance 
said  in  eflect,  'Yes,  we  agree,  if  it  is  understood  that  we  mututally 
renounce  the  i)retensions  which  are  the  object  of  that  article,'  to  which 
the  Senate  and  the  President,  by  their  oilicial  action,  assented.   *   ♦    * 

"  Four  years  later  Mr.  IMadison,  then  Secretary  of  State,  instructed 
Mr.  Pinckncy,  minister  in  Spain,  that  '  the  claims  from  which  France 
was  released  were  admitted  by  France,  and  the  release  was  for  a  valu- 
able consideration  in  a  correspondent  release  of  the  United  States  from 
certain  claims  on  them.  The  claims  we  make  on  Sjjain  were  never  ad- 
mitted by  France  nor  made  on  France  by  the  United   States.     They 

7  or: 


§  248.]  CLAIMS.  [cnAP.  ix. 

made,  therefore,  no  part  of  the  bargain  with  her,  and  euuhl  not  be 
included  in  the  release.' 

"The  counsel  for  defendants  contends  that  Mr.  IMadison  referred  in 
this  letter  to  'national'  claims  on  the  part  of  the  United  iStates  for 
national  injury,  in  the  destruction  of  commerce,  the  increased  cost  of 
the  Army  and  Xavy,  and  the  insult  to  the  llaj;.  It  should  be  noted, 
in  answer  to  this  position,  that  the  claims  a^^ainst  Sjiain,  then  under 
discussion,  were  exactly  these  chiims  now  at  bar,  except  that  Spain  was 
the  party  defendant  instead  of  France.  As  aj^ainst  France  cajjtures 
nuule  by  French  ])rivateers  under  French  decrees  were  taken  into 
French  i)orts,  and  there  condemned.  As  ag:ainst  Spain  cai)tures  made 
by  French  i)rivateers  under  French  decrees  were  taken  into  Spanish 
ports  and  there  condemned  by  F^rench  consuls  under  the  authority  and 
l)rotection  of  Spain.  Spain  plead  that  these  claims  were  settled  by  tiie 
second  article  of  the  treaty  of  ISOO,  and  it  was  in  answer  to  this  plea 
that  Mr.  Madison  wrote  his  letter. 

"  The  subject-matter  of  the  instruction  to  Pinckney  was  these  claims 
and  nothing  else,  for  we  were  not  urging  'national'  claims  on  Spain, 
but  the  claims  subsequently  described  in  the  Spanivsh  treaty  as  those 
'  on  account  of  prizes  made  by  French  ])rivateers  and  condemned  by 
French  consuls,  within  the  territory  and  jurisdiction  of  Spain.'  (Treaty 
of  1819,  Art.  IX.)  These  claims  were  (inally  recognized,  and  i)aid 
through  the  Florida  purchase.  [Ibid.,  Art.  XI;  see,  also,  treaty  of 
1S0l>.)"    *     *     * 

"  Mr.  Pickering,  Secretary  of  State  under  the  first  two  Presidents,  and 
who,  above  all  others,  was  familiar  with  the  situation  and  with  the 
rights  of  the  parties,  said  that  we  bartered  '  the  just  claims  of  our  mer- 
chants' to  obtain  a  relinquishment  of  the  French  demand,  and  that — 

"  'It  would  seem  tbat  the  merchants  Lave  an  equitable  claim  for  indemnity  from  the 
United  States.  »  »  *  xbe  reliuquisliment  by  our  Government  having  been  made 
in  consideration  that  the  French  Government  relinquished  its  demands  for  a  renewal 
of  the  old  treaties,  then  it  seems  clear  that,  as  our  Government  applied  the  merchants' 
property  to  bny  off  those  old  treaties,  the  sums  bo  applied  should  be  reimbursed.'  (Mr. 
Clayton's  speech,  184(5.) 

"Mr.  Madison,  as  we  have  seen,  said  to  Spain  that  the  claims  were 
admitted  by  France,  and  were  released  '  for  a  valuable  consideration,' 
and  he  termed  the  transaction  a  '  bargain.' 

"Mr.  Clay,  in  the  3*Ieade  case,  in  which  hiso[)inion  was  given  in  l.Si'l, 
five  years  prior  to  his  report  on  French  spoliations,  said  that  while  a 
country  might  not  be  bound  to  go  to  war  in  support  of  the  rights  of  its 
citizens,  and  while  a  treaty  extinction  of  those  rights  is  probably  bind- 
ing, it  appears — 

"  'That  the  rule  of  equity  furnished  by  our  Constitution,  and  which  provides  that 
private  property  shall  not  be  taken  for  public  use  without  just  couipensation  applies, 
and  entitles  the  injured  citizen  to  consider  his  own  country  a  substitute  for  the  for- 
eign i)Owcr.' 

"In  this  conclusion  Chief  Justice  Marshall  strongly  concurred,  saying 
to  Mr.  Preston  that — 

"'Having  been  connected  with  the  events  of  the  period  and  conversant  with  the 
circumstances  under  which  the  claims  arose,  he  was,  from  his  own  knowledge,  satis- 
fied that  there  was  the  strongest  obligation  on  tho  Government  to  compensate  the 
sufferers  by  the  French  spoliations.'    (Mr.  Clayton's  speech,  1846.) 

726 


CHAP.  IX.]  LIABILITY    FOR    ABANDONING    CLAIM.  [§  248. 

"  Aud  lie  repeated  to  i\Ir.  Leigh  distinctly  aud  positively  'that  tbe 
Uuited  States  ofljilit  to  make  payment  of  these  claims.' 

"  This  view  of  the  distinguished  jurist  and  diplomatist  is  sustained  by 
forty-five  reports  favorable  to  these  claims,  made  in  the  Congress,  against 
which  stand  but  three  adverse  reports,  all  of  which  were  made  prior  to 
the  publication  of  the  correspondence  by  Mr.  Clay  in  182G.  Besides 
Marshall,  Madison,  Pickering,  and  Clay,  the  validity  of  the  claims  has 
been  recognized  by  Clinton,  Edward  Livingston,  Everett,  Webster, 
Cushing,  Choate,  Sumner,  and  many  other  of  the  most  distinguished 
statesmen  known  to  American  histori^,  and  while  opponents  have  not 
been  wanting,  among  the  most  eminent  of  whom  were  Forsyth,  Calhoun, 
Polk,  Pierce,  Silas  Wright,  and  Benton,  still  the  vast  weight  of  author- 
ity in  the  political  division  of  the  Government  h;is  been  strenuous  in 
favor  of  the  contention  made  here  by  the  claimants.    *     *    * 

'•Thus,  while  all  claims  urged  by  one  nation  upon  another  are,  techni- 
cally speaking,  '  national,'  it  is  convenient  to  use  colloquially  the  words 
'  national'  and  'individual'  as  distinguishing  claims  founded  upon  injury 
to  the  whole  people  from  those  founded  upon  injury  to  particular  citizens. 
Using  the  words  in  this  sense,  it  appears  that  in  the  negotiations  prior 
to  the  treaty  of  1800,  and  in  effect  in  the  instrument  itself,  national 
claims  were  advanced  by  France  against  individual  claims  advanced 
by  the  United  States.  France  urged  that  she  had  been  wronged  as  a 
nation;  we  urged  that  our  citizens' rights  had  been  invaded.  If 'na- 
tional '  claims  had  been  uj-ed  against  '  national '  claims,  and  the  one 
class  had  been  set  ofi'  against  the  other  in  the  compromise,  of  course 
the  agreement  would  have  been  final  in  every  way,  as  the  surrender 
and  the  consideration  therefor  would  have  been  national,  and  no  rights 
between  the  individual  and  his  own  Government  could  have  compli- 
cated the  situation.  But  in  the  negotiation  of  ISUO  we  used  'individual' 
claims  against  '  national '  claims,  aud  the  setoff  was  of  French  national 
claims  against  American  individual  claims.  That  any  Government  has 
the  right  to  do  this,  as  it  has  the  right  to  refuse  war  in  protection  of  a 
wronged  citizen,  or  to  take  other  action,  which,  at  the  expense  of  the 
individual,  is  most  beneficial  to  the  whole  people,  is  too  clear  for  dis- 
cussion. Nevertheless,  the  citizen  whose  property  is  thus  sacrificed  for 
the  safety  and  welfare  of  his  country  has  his  claim  against  that  coun- 
try ;  he  has  a  right  to  compensation,  which  exists  even  if  no  remedy 
in  the  courts  or  elsewhere  is  given  him.  A  right  often  exists  where 
there  is  no  remedy,  and  a  most  frequent  illustration  of  this  is  found 
in  the  relation  of  the  subject  to  his  sovereign,  the  citizen  to  his  Gov- 
ernment.    »     *     * 

"We  have  not  considered  the  point  that  the  treaties  of  1778  were 
abrogated  by  the  act  of  Congress  passed  in  1798.  That  question,  which 
the  ablest  minds  of  the  period  were  unable  to  solve,  and  which  proved 
an  ever  preser,t  and  enduring  obstacle  to  all  negotiation  until  forcibly 
removed  by  Xapoleon,  with  our  concurrence,  we  fortunately  are  not 
forced  to  deal  with.  The  rights  of  this  claimant  rest  upon  no  conven- 
tion, but  are  founded  upon  international  law.  Treaty  or  no  treaty,  a 
foreign  nation  cannot  be  permitted  to  confiscate  an  American  merc^hant- 
nian  engaged  in  legitimate;  commerce  upon  the  high  seas  because  his 
crewli.st  (Ices  not  fulfill  the  re(iiiireinents  of  that  nation's  local  ordi- 
nances. That  the  act  of  Congress  was  binding  within  the  juiisdiction 
of  the  United  States  and  was  necessarily  to  be  so  regarded  by  our 
courts  does  not  now  admit  of  question.     The  treaties  were,  however, 

727 


^  249.]  CLAIMS.  [CIIAP.  IX. 

uot  only  part  ol'  tbc  supreme  law  of  (he  land  wherein  they  were  re- 
])lace(l,  within  the  jurisdiction  of  the  Constitution,  by  *a  later  supreuie 
law,  to  wit,  a  statute,  but  the^^  were  also,  as  between  the  two  llepub- 
lics,  contniets,  which  one  of  the  parties  attempted  to  annul.  Treaties 
containin<^"  no  clause  lixinj^'  their  duration  are,  under  certain  circum- 
stances, voidable  at  the  oi»tion  c»f  one  i)arty  ;  whether  there  existed  in 
1798  such  circumstances  as  authorized  and  made  valid  an  abrogation  of 
the  treaties  of  1778  by  the  United  States  was  the  very  question  left  un- 
settled by  the  treaty  of  1800,  the  one  question  upon  which  by  no  ])0ssi- 
bility  api)arentl3'  could  the  parties  agree." 

Opinion  of  Judge  John  Davis,  on  "French  spoliations,"  Court  of  Claiiiis,  May 

17,  May  24,  188G. 
A3  to  construction  of  treaty,  see  further,  siqira,  ^  1-18  b,c. 

The  correspondence  of  Mr.  Pickering,  Sec.  of  State,  with  Mr.  Adct,  minister 
from  France,  as  to  French  spoliations  prior  to  Nov.  1796,  is  given  in  1  Am. 
St.  Pap.  (For.  Kcl.),  G35  .^.  See  also  details  given  in  Mr.  Pickering's  in- 
structions to  Mr.  Pincliuey  of  Jan.  IG,  1797,  Hid.,  5G1. 

The  following  documents  may  be  consulted  in  this  relation : 

Mr.  Holmes'  report  to  the  Senate  of  Feb.  8,  1827,  Senate  Doc.  453,  19th  Cong., 
2d  sess. :  C  Am.  St.  Pap.  (For.  Rcl.),  r>58.  Mr.  Chambers'  report  of  May 
24,  1828,  on  French  spoliations,  Senate  Doc.  20G,  20th  Cong.,  1st  sess.  Mr. 
Livingston's  report  of  Feb.  22,  1830,  Senate  Doc.  68,  21st  Cong.,  Ist  sess. 
Mr.  Livingston's  report  of  Jan.  14, 1831,  Senate  Doc.  32, 21st  Cong.,  2d  sess. ; 
Senate  Doc.  51,  22d  Cong.,  1st  sess.  Mr.  Chambers'  Senate  report  of  May 
24,  1828,  Senate  Doc.  500,  20th  Cong.,  1st  sess.,  6  Am.  St.  Pap.,  1121.  Mr. 
Cambreleug's  report,  House  Doc.  121,  23d  Cong.,  2d  sess.,  containing  state- 
ment by  Mr.  Edward  Everett  on  the  same  subject.  Mr.  Howard's  report  of 
Jan.  20, 1838,  House  Doc.  448,  25th  Cong.,  2d  sess.,  giving  a  series  of  prior  re- 
ports. Report  of  Mr.  Smith,  Feb.  5, 1850,  from  select  committee,  with  Mr. 
Hunter's  minority  report.  Senate  Rep.  Com.  44,  3Lst  Cong.,  1st  sess.  Re- 
port of  Mr.  Bnel,  House  Rep.  3.^5,  31st  Cong.,  1st  sess.  Report  of  Mr.  Royce, 
Mar.  23,  18G0  (adopting  Mr.  Crittenden's  Senate  report  Feb.  4,  1858),  House 
Rep.  259, 36th  Cong.,  1st  sess.  Mr.  Sumner's  report,  Apr.  4, 1864,  Senate  Rep. 
Com.  41,  36th  Cong.,  1st  sess.  Mr.  Sumner's  report,  Senate  Com.  1,  40th 
Cpng.,  1st  sess.  Mr.  Sumner's  report,  Jan.  17,  1870,  Senate  Rep.  10,  4l8t 
Cong.,  2d  sess. 

A  history  of  the  applications  to  Congress  prior  to  1877  is  found  in  Senate  Mis. 
Doc.  29,  44th  Cong.,  2d  sess. 


XVII.  FOREIGN  SOVEREIGNS  MAY  SUE  IN  FEDERAL  COURTS. 

§249. 

A  foreign  sovereign  (in  this  case  it  was  Napoleon  III)  may  bring  a 
civil  suit  in  the  courts  of  the  United  States. 

The  Sapphire,  11  Wall.,  164 ;  see  King  of  Spain  v.  Oliver,  2  Wash.  C.  C,  431. 

A  suit  brought  in  a  court  of  the  United  States  by  a  foreign  sovereign, 
where  the  nation  he  represents  is  the  party  substantially  aggrieved,  as 
in  the  case  of  an  injury  to  a  public  ship,  is  not  defeated,  nor  does  it 

728 


CHAP.  IX.]  FOREIGN  SOVEREIGNS  MAY  SUE  IN  U.  S.  COURTS.  [§  249. 

abate,  by  a  change  in  the  person  of  the  sovereign,  or  by  his  deposition. 
Such  change  may,  if  necessary,  be  suggested  on  the  record. 

The  Sapphire,  11  Wall.,  1G4. 
In  this  case  the  court  observed  that  if  a  special  case  should  arise  in  which  it  could 
be  shovrn  that  injustice  to  the  other  party  would  ensue  from  a  continuation  of  pro- 
ceedings after  the  death  or  deposition  of  a  sovereign,  the  court,  in  the  exercise  of  its 
discretionary  power,  would  take  such  order  as  the  exigency  might  require  to  prevent 
such  a  result. 

The  Constitution  of  the  United  States  gives  jurisdiction  to  the  courts 
of  the  United  States,  in  cases  where  foreign  states  are  parties,  and  the 
judiciary  act  gives  to  the  circuit  courts  jurisdiction  in  all  cases  between 
aliens  and  citizens ;  but  the  court  refused  to  inquire,  upon  a  motion, 
whether  Ferdinand  VII,  King  of  Spain,  could  institute  this  suit,  the 
Government  of  the  United  States  not  having  acknowledged  him  King. 
King  of  Spain  v.  Oliver,  2  Wash.  C.  C,  429. 

729 


CHAPTER  X. 

MARRIAGE. 

I.  Mode  of  solkmxizat.ox. 

(I)  At  coninion  law,  consonsnal  iiiariiaj^c  is  valid,  ^  2G0. 
(*2)  Solemnization  valid  at  placo  of  marriage  is  valid  overywhoro,  $  2G1. 
(3)  Local  prescriptions  as  to  form  have  no  extraterritorial  force,  $  2G2. 
II.  Matrimonial  capacity. 

Determined  by  national  policy,  ^  20:5. 

I.  MODE  OF  SOLEMNIZATION. 

(1)  At  common  law,  consensual  maruiage  valid. 

§  2G0. 

By  tlie  common  law,  Mbich  the  colonists  of  this  country  brought  with 
tlieni,  it  is  not  necessary  to  the  validity  of  a  marriage  that  it  should  be 
solemnized  by  any  particular  form,  or  in  the  presence  or  with  the  sanc- 
tion of  any  officer,  ecclesiastical  or  civil. 

Patterson  t?.  Gaines,  G  How.,  550;  Blackbnrii  v.  Crawford,  3  Wall.,  175;  Meister 
r.  Moore,  96  U.  S.,  76 ;  and  cases  cited  in  Whart.  Confl.  of  Laws,  ^  171-174 ; 
Mr.  W.  B.  Lawrence,  in  11  Alb.  Law  J.,  33. 

(2)   SOLEMXIZATIOX   VALID   AT   PLACE   OF   MARRIAGE   IS  VALID   EVERYWHERE. 

§  2G1. 

"^larriages  are  frequently  celebrated  in  one  country  in  a  manner  not 
lawful  or  valid  in  another,  but  did  any  one  ever  doubt  that  marriages 
are  valid  over  the  civilized  world  if  valid  in  the  country  in  which  they 
took  place?" 

Mr.  Webster,  Sec.  of  State,  to  Lord  Asbbnrton,  Aug.  1,  1842.  MSS.  Notes,  Gr. 
Brit.;  quoted  more  fully  supra,  $  38. 

"  From  the  proximity  of  the  two  countries  the  intercourse  between 
them  and  the  likelihood  of  frequent  intermarriages  between  their  re- 
spective citizens,  it  is  desirable  that  the  rule  upon  the  subject  should  be 
uniform  in  the  United  States  and  in  Mexico.  In  this  country,  in  Eng- 
land, and  in  most  nations  on  the  continent  of  Europe,  a  marriage  is 
valid  if  it  has  been  contracted  according  to  the  lawsof  tlie  place  where 
the  ceremony  was  performed.  This  may  be  said  to  be  the  almost  uni- 
versal rule.  It  has  been  firmly  establishecj  in  England  after  elaborate 
discussion  and  investigation.  In  one  of  the  principal  cases  upon  the 
subject,  the  opinion  of  the  celebrated  Spanish  jurist  Sanchez,  in  favor 
730 


CHAP.  X.]  MODE    OF    SOLEMNIZATION.  [§261. 

of  the  rule,  seems  to  liave  been  mucli  relied  upou.  His  words  are  quoted 
below  aud  ouglit  certaiuly  to  be  respected  by  the  Mexican  cliurcli.  You 
may  refer  tbe  Mexican  arcbbishop  to  tbe  passage  and  also  to  the  cbar- 
acter  of  Sanchez  and  of  bis  treatise  '  de  matrimonio,''  expressed  by  Pope 
Clement  YIII,  also  quoted  below.  Marriages  between  Protestants  and 
Catholics  are  frequent  iu  this  country.  Although  the  clergy  of  that  per- 
suasion may  iu  general  suppose  that  this  may  in  some  degree  conflict 
with  the  welfare  of  their  church,  it  is  believed  that  they  seldom  if  ever 
seriously  oppose  such  marriages,  though  some  of  them  may  object  to 
perform  the  ceremony  if  a  Protestant  clergyman  is  also  to  have  an  agency 
therein.  It  is  an  unquestionable  fact,  however,  that  many  marriages 
take  place  between  Catholics  and  Protestants  in  which  the  ceremony 
is  performed  by  clergymen  of  both  denominations.  Although  all  Chris- 
tian sects  are  equal  before  the  law  in  this  county,  it  is  believed  that  the 
Catholics  themselves  do  not  object  to  this." 

Mr.  Webster,  Sec.  of  Satc.to  Mr.  Letcher,  Jan.  20,  1851.     MSS.  lust.,  Mex. 

"  The  general  rule  of  our  law  iu  this  particular,  as  stated  in  the  opinion 
of  the  Attorney-General  of  the  United  States  of  November  4, 1854,  is 
to  ascribe  validity  to  marriages  when  they  are  valid  at  the  place  of 
celebration.  According  to  the  laws  of  some  of  the  States  of  the  United 
States,  as  you  are  no  doubt  aware,  the  ceremony  of  marriage  cannot  be 
legally  performed  unless  certain  requirements,  the  obtainiug  a  license, 
etc.,  shall  have  been  duly  fulfilled.  But  these  laws,  of  course,  have  no 
effect  outside  of  the  jurisdiction  of  the  respective  States  iu  which  they 
exist,  and  I  am  not  aware  that  the  laws  of  any  State  of  the  United 
States  render  the  consent  of  its  authorities  previously  obtained  neces- 
sary to  establish  the  validity  of  a  marriage  of  one  of  its  citizens  celebrated 
in  a  foreign  country." 

Mr.  Cass.  Sec.  of  State,  to  Mr.  Ilulsemauu,  Feb.  2,18G0.    MSS.  Notes,  Austria. 

The  act  of  June  22, 18G0  (Rev.  Stat.,  §  4082),  provides  that  "marriages 
in  presence  of  any  consular  officer  of  the  United  States,  in  a  foreign 
country,  between  persons  who  would  be  authorized  to  marry  if  residing 
in  the  District  of  Columbia,  shall  be  valid  to  all  intents  and  i)urposes,  and 
shall  have  the  same  efiect  as  if  solemnized  within  the  United  States. 
And  such  consular  officers  shall,  in  all  eases,  give  to  the  parties  married 
before  them  a  certificate  of  such  marriage,  and  shall  send  another  cer- 
tificate thereof  to  the  Department  of  State,  there  to  be  kept ;  such  certi- 
ficates shall  specify  the  names  of  the  ])arties,  their  ages,  places  of  birth, 
and  residence." 

"  I  suppose  that  upon  principles  of  general  legislation  the  validity  of 
a  marriage,  or  of  any  other  contract,  depends  upon  the  law  of  the  place 
where  such  marriage  or  other  contract,  is  entered  into.  And  I  suppose 
also,  that  if  there  is  no  special  legislation  to  the  contrary,  the  efl'ecl  of 
such  marriage  is  legally  the  same  in  every  country  as  if  celebrated  therein. 
iJut  tbe  validity  of  a  nuirriage  and  the  consequences  to  result  from  it 
to  persons  or  property  are  very  different  questions  and  depend  upon 

731 


§261.]  MARRIAGE.  [CIIAP.  X. 

dili'eieDt  piiuciples.  It  is  competent  lor  every  nation  to  provide  by  its 
own  laws  that  'marriages,  wherever  they  take  place,  unless  celebrated 
in  a  particular  manner,  or  under  particular  circumstances,  shall  be  in- 
eftcctual  to  secure  to  parties  chiinjing  under  them  the  rights  they 
would  have  been  entitled  to  had  no  such  disabling  legislation  existed. 

''  This  is  a  subject  of  internal  policy,  wholly  dependent  upon  local 
considerations.  But  the  validity  of  the  marriage  itself  is  quite  another 
matter  which  cannot  justly  he  thus  dealt  with.  Xot  only  is  it  bind- 
ing upon  tlie  parties  in  foro  conticientkc,  but  it  is  beyond  the  reach  of 
any  riglitful  legislation.     *     *     * 

"  Congress  has  nothing  to  do  witli  tlie  validity  or  effect  of  marriage, 
nor  with  the  marriage  contract,  indeed,  except  in  places  subject  to  its 
exclusive  jurisdiction.  These  are  questions  which,  in  the  several  States, 
are  regulated  by  their  respective  laws,  each  exercising  the  power 
■within  its  own  boundaries.  When,  therefore,  the  inquiry  is  made  in 
Europe  how  a  marriage  must  le  celebrated  there,  not  only  to  be  valid, 
but  to  carry  with  it  its  proper  rights  in  the  United  States,  no  general 
answer  can  be  given  to  the  question.  The  answer  must  embrace,  not 
only  the  provisions  of  the  laws  of  the  United  States,  so  far  as  regards 
the  places  governed  by  those  laws,  but  must  embrace  also  the  laws  of 
thirty-three  States,  besides  five  Territories.  It  is  obvious  that  a  satis- 
factory reply,  under  such  circumstances,  is  a  subject  which  may  pre 
sent  some  difficulty,  and  our  foreign  ministers  and  consuls  should  be 
cautious  respecting  the  information  they  give,  lest  unfortunate  conse- 
quences might  result  to  the  party  seeking  it.    *     *    * 

"  There  is  no  subsequent  legislation  which  confers  this  jurisdiction. 
I  consider  that  the  31st  section  of  the  act  of  Congress,  passed  at 
its  last  session,  giving  certain  judicial  powers  to  ministers  and  con- 
suls of  the  United  States  in  foreign  countries,  and  which  declares  that 
marriages  celebrated  therein  in  presence  of  any  consular  officer,  be- 
tween persons  who  would  be  authorized  to  marry  in  the  District  of 
Columbia,  shall  have  the  same  force  and  eiiect,  and  shall  be  valid  to 
all  intents  and  purposes,  as  if  the  said  marriage  had  been  celebrated 
within  the  United  States,  provides  only  for  the  presence  of  a  consular 
officer  upon  such  an  occasion.  And  the  provision  is  no  doubt  a  wise 
one,  not  only  because  it  furnishes  security  against  fraud,  but  because 
it  renders  more  easy  the  authentication  of  such  marriages  in  the 
United  States.  But  it  does  not  withdraw  the  celebration  of  such  mar- 
riages from  the  authority  of  the  country  where  they  take  place,  nor 
does  it  give  any  power  to  the  consular  officer  himself  to  jierform  the 
ceremony.  And  that  part  of  the  same  section  which  declares  that 
such  marriages  shall  have  the  same  effect  as  if  they  had  been  celebrated 
in  the  United  States  must,  in  my  opinion,  be  limited  to  places  and  dis- 
tricts over  which  Congress  possesses  the  power  of  exclusive  jurisdic- 
tion, and  cannot  operate  on  the  respective  States." 

Mr.  Casa,  Sec.  of  State,  to  Mr.  Fay,  Nov.  1-2,  18G0.     MSS.  Inst.,  Switz. 
732 


CUAP.  X.]  MODE    OF    SOLEMNIZATION.  [§261. 

"Your  dispatch  of  the  9tli  of  February,  Xo.  50,  has  been  received, 
la  that  commuuicatiou  you  set  forth  the  following  facts,  namely,  that 
Anna  Maria  Suter,  a  native  ot  the  canton  of  Aargau,  in  Switzerland, 
emigrated  to  the  United  States,  and  was  married  at  Philadelphia  on  the 
2d  of  January,  1855,  to  John  Hiirlimann,  a  citizen  of  the  United  States 
residing  in  that  city  ;  that  she  bore  a  son  on  the  15th  of  March,  1857, 
who  was  baptized  John,  and  that  she  died  on  the  29th  of  March,  18G1; 
Ihat  afterwards  the  father  of  the  said  Anna  Maria  Suter  died  in  the 
canton  of  Aargau,  leaving  a  fortune,  a  i^ortion  of  which  would  have 
fallen  to  the  said  Anna  Maria,  as  one  of  the  heirs  of  the  father,  if  she 
were  living,  or  to  her  legitimate  issue  if  she  were  dead ;  that  proceedings 
at  law  have  been  instituted  in  Switzerland  by  John  Hiirlimann,  the 
father  of  the  aforenamed  child,  John,  son  of  the  said  Anna  Maria,  to 
recover  the  portion  of  the  estate  beforementioned ;  and  that  the  legiti- 
macy of  the  child  is  denied  under  law  of  the  canton  of  Aargau,  upon  the 
ground  that  the  marriage  in  the  United  States  was  celebrated  without 
a  compliance  with  the  preliminaries  prescribed  by  the  laws  of  the  can- 
ton. The  attorney  for  the  child  requests  your  intervention,  and  you 
solicit  instructions  on  the  subject. 

"You  give  no  facts  from  which  we  can  determine  whether  the  mother's 
domicil,  immediately  before  her  marriage,  remained  in  Switzerland  or 
had  been  established  in  this  country ;  of  course  her  marriage  fixed  that 
domicil  here. 

"  That  fiict,  however,  may  not  have  had  any  retroactive  bearing  upon 
the  mother's  antecedent  domicil.  The  law  of  Congress  which  declares 
that  women  of  foreign  birth  who  marry  citizens  of  the  United  States 
thereby  themselves  become  citizens,  was  not  enacted  until  February  10, 
1855,  a  month  after  the  marriage. 

"  Our  law  treats  as  valid  a  marriage  which  is  valid  by  the  law  of  the 
place  where  it  was  solemnized. 

"The  law  of  Switzerland,  and  in  general  those  of  continental  Europe, 
while  admitting  that  the  law  of  the  place  controls  as  to  the  form  ot 
marriage,  nevertheless  holds  that  in  respect  to  the  capacity  of  the  per- 
son to  contract  marriage  the  law  of  the  domicil  travels  with  him,  and 
invalidates  the  union  wherever  contracted,  if  it  be  against  the  law  of 
ills  domicil. 

"  It  may,  however,  I  think,  be  successfully  maintained  that,  even 
under  the  European  jurisdiction  in  relation  to  the  capacity  of  thei)erson 
to  contract  marriage,  the  bona  Jidc  establishment  of  a  new  domicil  with 
the  intention  of  a  permanent  residence  therein,  relieves  the  emigiiuit 
from  the  bonds  of  his  native  law. 

"  Under  any  circumstances,  this,  in  the  first  instance,  would  be  a  quos 
tioii  for  the  Swiss  courts;  but  under  the  special  provision  of  our  treaty 
with  Switzerland,  it  is  a  question  for  those  courts  finally.  The  (llh 
article,  (U  Unit«'d  States  Statutes  at  Large,)  declares  that  any  <;<)iitro- 
versy  that  may  arise  among  the  claimants  of  Hm;  sanu^  su<;cession  as  to 

733 


§  261.]  MAKKIAGE.  [CHAP.  X. 

wboiu  the  property  shall  belong  shall  be  decided  aceordiug  to  the  laws 
and  by  the  jadf;es  of  the  country  in  which  the  property  is  situated.  1 
think  it  to  be  a  just  construction  of  this  section  that  it  takes  the  ques- 
tion altogether  out  of  the  domain  of  diplomacy. 

"  It  is  proper,  however,  to  express  the  opinion  here,  that  whether  the 
child  now  in  question  shall  be  held  by  the  courts  of  Switzerland  to  be 
legitimate  or  illegitimate,  he  is  nevertheless  a  citizen  of  the  United 
States." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Harrington,  Mar.  21, 1SG8.     MSS.  Inst.,  Swilz. ; 

Dip.  Corr.,  1SG3. 
A.S  to  Swiss  treaty  above  noticed,  sec  supra,  ^  1G3. 

"The  authorities  of  Switzerland  have  recognized  the  validity  of  the 
marriage  in  Philadelphia  of  a  Swiss  female  to  a  citizen  of  the  United 
States,  although  such  marriage  might,  according  to  the  law  of  Switzer- 
land, have  been  deemed  void  for  want  of  the  consent  of  the  authorities 
of  her  native  canton." 

Mr.  Fi.sli,  Sec.  of  State,  to  Mr.  Sistniayer,  Apr.  21,  1870.     MSS.  Doni.  Let. 

The  marriage  of  a  Swiss  woman,  though  it  would  have  been  invalid 
if  solemnized  in  Switzerland  for  the  want  of  consent  of  the  local  author- 
ities, has  been  held  in  Switzerland  to  be  valid,  so  far  as  this  feature  is 
concerned,  if  solemnized  in  the  United  States. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jay,  Jnly  27,  1871.    MSS.  lust.,  Anstria. 

'•Our  law  regards  every  marriage  as  valid  if  valid  at  the  place  where 
it  was  contracted,  and  would  not  even  deem  it  invalid  in  the  United 
States  if  it  was  celebrated  in  accordance  with  the  few  and  simple  requi- 
sites of  our  law,  though  it  lacked  some  of  the  formalities  which  are 
made  essential  by  the  law  of  the  place  where  the  marriage  took  place." 

Ihid. 

This  extension  of  the  rule  cannot  now  be  sustained.  A  marriage  which  is  in- 
valid from  defect  of  form  in  the  place  of  solemnization  is  invalid  every- 
where, unless  (1)  the  local  law  adopts  in  such  cases  the  lex  domicilii,  or 
(2)  the  form  omitted  was  one  the  parties  could  not  conscientiously  adopt, 
or  (3)  it  was  impossible  of  adoption,  or  (4)  the  marriage  was  solemnized 
in  a  barbarous  or  semi-civilized  land. 

Immigrants  marrying  at  a  port  of  embarkation,  in  view  of  settling  in 
the  United  States,  may  be  so  far  regarded  as  domiciled  in  that  one  of 
the  United  States  to  which  they  are  bound  as  to  bring  them  under  the 
shelter  of  local  laws  which  make  marriages  solemnized  in  accordance 
with  the  law  of  the  domicil  valid. 

Ibid.     See  Whart.  Conf  of  Laws,  ^  1G9/. 

A  marriage  solemnized  by  the  minister  of  the  United  States  at  Den- 
mark, who  was  also  a  minister  of  the  Gospel,  in  his  "capacity  as  minister 
of  the  Gospel,"'  "of  parties  who  would  be  legally  entitled  to  marry  in  the 
District  of  Columbia  had  they  been  residing  there,"  was  held  to  be  "not 

734 


CHAP.  X.]  MODE    OF    SOLEMNIZATION.  [§  261. 

solemnized  in  accordance  with  the  laws  of  the  Uuited  States  iu  relation 
to  such  marriage,"  though  no  opinion  was  expressed  as  to  whether  the 
marriage  was  in  itself  valid. 

Mr.  Fisli,  Sec.  of  State,  to  Mr.  Cramer,  Juuo  14,  1874.  MSS.  lust.,  Denmark. 
See  also  Mr.  Fish  to  Mr.  Jewell,  June  10,  1874.     MSS.  Inst.,  Russia. 

As  asserting  the  efficacy  of  tlie  act  of  June  22,  18G0,  in  legalizing  marriages  iu 
the  presence  of  consuls  abroad,  but  denying  the  power  of  consuls  under  that 
act  to  perform  the  ceremony,  and  as  criticizing  Mr.  Cass's  instruction  of 
Nov.  12,  1860,  see  instructiou  of  Mr.  Fish,  Sec.  of  Stale,  to  Mr.  Logan,  Aug. 
19,  1S74.     MSS.  Inst.,  Chili. 

"  Ton  remark  that  you  had  only  recently  become  aware  that  consuls 
of  the  United  States  in  Italy  had  been  in  the  habit  of  issuiug  certificates 
to  meet  the  requirements  of  section  103  of  the  Italian  civil  code,  which  re- 
quires a  declaration  from  competent  authority  that  there  are  no  imped- 
iments to  a  proposed  marriage.  It  is  probable,  however,  that  the  prac- 
tice of  issuing  such  certificates  has  long  prevailed,  and  the  Department 
sees  no  objection  to  them  if  due  inquiry  be  made  as  to  the  facts  before 
they  are  issued. 

"  The  puri^ose  of  Congress  in  requiring  the  presence  of  a  consul  at  a 
marriage  may  have  been  to  secure  the  testimony  of  an  official  witness  of 
our  own  to  the  act,  a  witness,  too,  who  would  be  bound  to  record  the 
transaction  in  the  archives  of  his  consulate  and  attest  it  under  his  offi- 
cial seal. 

"  Though  unofficial  witnesses  might  be  held  competent  to  testify,  their 
testimony  might  not  be  held  available  when  required.  The  parties  to 
the  marriage,  however,  could  always  produce  the  consul's  certificate 
when  occasion  might  call  therefor. 

"  You  are  believed  to  be  mistaken  in  saying  that  the  48th  section  of 
the  new  insf:ructions  of  the  Department  expresses  doubt  as  to  whether 
marriage  can  be  legally  celebrated  at  all  between  citizensof  the  United 
States  in  a  foreign  country,  unless  it  be  solemnized  in  conformity  with 
the  laws  of  such  country.  Your  mistake  upon  this  point  will,  it  is  be- 
lieved, be  clear  to  you  upon  a  further  examination  of  the  paragraph  re- 
ferred to.  The  Department  has  been  careful  not  to  express  an  opinion 
as  to  the  validity  of  any  marriage  under  particular  circumstances.  Its 
object  has  been  merely  to  warn,  so  as  to  lessen,  as  far  as  might  be  prac- 
ticable, the  peril  of  contracting  a  marriage  which  in  any  case  might  be 
declared  to  be  invalid.  It  is  not  the  province  of  an  Executive  Depart- 
ment to  decide  the  question. 

"Tlie  provisions  of  ouractof  ISGOupon  thesubject  of  marriages  abroad 
are  not  Kui)posed  to  have  been  influenced  bythelegislationof  any  other 
country.  They  are  understood  to  have  been  in  the  main  designed  to 
correct  a  i)ractice  which  prevailed  at  some  jjoints  of  marriages  by  con- 
suls without  reference  to  the  local  law. 

"  Marriage  at  legations  witbout  regard  to  tlii'  law  ol'  tlie  country,  on 
tlie  ground  of  extraterritoriality,  as  it  is  called,  is  at  best  a  qucstionablo 

735 


§261.]  MARRIAGE.  [CIIAP.  X. 

proceediug,  which  it  may  be  apprehended  wouhl  scarcely  be  sanctioned 
by  the  courts  of  the  nation  where  they  were  solemnized.  The  tendency 
of  opinion  is  believed  to  be  towards  narrowin^;-  tlie  imnumities  of  diplo- 
matic otKcers  and  their  i)laces  of  abode  to  those  limits  only  which  may 
be  indispensable  to  enable  them  to  discliarge  their  official  duties  without 
molestation  or  restraint. 

"  The  use  of  the  legation  lor  the  marriage  of  persons,  even  of  the  na- 
tionality of  the  country  to  which  it  belongs,  cannot  bo  said  to  be  neces- 
sary or  even  convenient  for  dii)l()matic  purposes. 

"  The  comi)etency  of  this  Government  to  provide  generally  for  the 
marriage  of  citizens  of  the  United  States  abroad  has  not  been  called  in 
question,  nor  has  any  opinion  upon  that  point  been  expressed. 

''You  seem  to  have  overloolced  section  21  of  the  act  of  Congress  of  the 
18th  of  August,  185G,  which  confers  upon  secretaries  of  legation  author- 
ity to  act  as  notaries  in  certain  cases. 

"  When  the  consequences  of  marriage  in  respect  to  i)ro]ierty  in  posses- 
sion, or  which  may  be  acquired  by  gift,  purchase,  or  inheritance  to  the 
offspring  of  the  parties,  or  to  the  peace  of  mind  or  good  name  of  the  lat- 
ter, are  duly  considered,  the  weight  of  the  responsibility  which  an  otH- 
cer  of  this  Government  abroad  may  incur  by  in  any  way  countenancing 
a  rash  contract  of  that  kind  may  become  apparent." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Marsb,  Jan.  19,  1875.  MSS.  lust.,  Italy;  For. 
Rel.,  1875.  See  also  Mr.  Fish  to  Mr.  Wasbburn,  Nov.  14, 1874.  MSS.  Inst., 
France. 

"Your  dispatch  Ko.  538,  of  the  19th  ultimo,  has  been  received.  It 
states,  in  its  closing  paragraph,  that  in  a  case  of  marriage  between  Amer- 
ican citizens  in  Italy,  you  might  advise  that  a  blank  in  the  consular 
certificate  should  be  filled  with  the  words  'laws  of  the  United  States.' 
This,  however,  would,  it  is  apprehended,  not  be  a  judicious  course,  and 
it  might  prove  to  be  judiciallj'  untenable.  The  only  law  of  the  United 
States  on  the  subject  of  marriage  is  that  which  provides  that  all  mar- 
riages celebrated  in  the  presence  of  a  consular  officer  in  a  foreign 
country  between  persons  who  would  be  authorized  to  marry  if  residing 
in  the  District  of  Columbia  are  valid  to  all  intents  and  purposes  as  if 
said  marriage  had  been  solemnized  in  the  United  States.  The  phrase 
'laws  of  the  United  States,'  might  therefore  be  deemed  to  imply  laws  of 
the  several  States.  Xow,  as  the  laws  of  the  several  States  on  the  sub- 
ject of  marriage  are  various,  if  the  certificate  were  to  say  that  the  mar- 
riage was  performed  according  to  the  'laws  of  the  United  States'  it 
might  be  held  to  be  vague  and  inaccurate. 

"The  United  States  statute  on  the  subject  of  marriages  above  re- 
ferred to  (Rev.  Stat.,  §  4082)  defines  those  who  may  be  married  under 
its  provisions,  namely,  'persons  who  would  be  authorized  to  marry 
if  residing  in  the  District  of  Columbia,'  but  is  silent  as  to  the  persons 
who  may  iierform  the  ceremony.  When,  however,  it  speaks  of  '  mar- 
73G 


CHAP.  X.]  MODE    OF    SOLEMNIZATION.  [§261. 

riage  in  a  foreign  country,'  it  is  but  reasonable  to  bold  tbat  to  be  a 
marriage  it  must  be  solemnized  (in  the  absence  of  autliority  given 
by  the  laws  of  the  United  States  to  any  other  person)  by  some  person 
authorized,  by  the  law  of  the  country  where  the  marriage  takes  place, 
to  perform  that  ceremony,  or  in  some  mode  recognized  by  such  law. 

"  In  this  view  it  is  believed  that  the  blank  indicated  by  you  in  form  of 
certificate  Xo.  87,  in  Consular  Eegulations  of  September  1, 1874,  should 
be  filled  with  the  name  of  the  country  in  which  the  marriage  takes 
place,  and  not  refer  to  the  authority  of  the  party  performing  the  cere- 
mony, as  derived  from  the  laws  of  the  United  States,  which  do  not  give 
authority  to  any  person  to  solemnize  marriages.  It  is  not  supposed 
that  actual  statutory  enactments  are  essential  to  give  the  authority,  but 
such  authority  as  would  seem  to  exist  in  Italy  for  the  performance  of 
the  marriage  ceremony  by  a  Protestant  priest,  as  is  inferred  from  the 
statement  in  your  dispatch,  that  'while  there  is  no  express  provision 
on  the  point  in  the  Italian  code,'  you  are  assured  that  such  a  marriage 
'  between  Americans  would  be  held  legal'  in  Italy. 

"Possibly  it  would  be  well  to  use  the  word  'law,'  which  will  cover 
unwritten  as  well  as  statute  law,  instead  of  the  word  'laws.'" 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Marsh,  Apr.  15, 1875.     MSS.  Inst., 
Italy;  For.  Kel.,  1875. 

"  The  act  of  June  22,  1860,  now  incorporated  in  the  Eevised  Statutes 
(§  4082),  neither  expresses  nor  implies  that  a  minister  shall  have  like 
powers  with  a  consul  as  regards  the  authentication  of  a  marriage,  and 
the  performance  of  a  marriage  ceremony  within  the  precincts  of  a  lega- 
tion would  require  the  presence  of  a  consul  to  fulfil  the  law.  (Personal 
Instructions,  XLVIII.) 

"  Unless,  therefore,  a  minister  of  the  United  States  be  required  or 
authorized  by  the  lex  loci  where  he  oflQcially  resides  to  perform  the  mar- 
riage ceremony  he  cannot  lawfully  do  so." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Logan,  June  8,  1880.     MSS.  Inst.,  Cent.  Am. 

It  is  not  competent  for  a  diplomatic  agent  of  the  United  States  abroad 
to  give  an  authoritative  certificate  as  to  the  effect  of  a  divorce  granted  in 
the  country  of  his  legation. 

Mr.  Frelinglmyeen.  Sec.  of  State,  to  Mr.  Cramer,  Jan.  20,  1883.     MSS.  Inst., 
Switz. 

"  A  United  States  consul  has  no  authority,  under  the  laws  of  the 
United  States,  to  solemnize  marriages,  and  even  if  he  had  such  author- 
ity it  would  have  to  be  exercised  in  obedience  to  the  laws  of  the  coun- 
try in  which  he  is  resident  as  such  consul.  Consuls  do  not  possess  any 
extraterritorial  privileges  in  regard  to  private  matters  between  individ- 
uals. The  law  provides  that  a  United  States  consul  may  bo  present 
and  witness  the  ceremony,  and  may  give  to  the  i)arlies  a  certificate  of 
the  fact  un<lr'r  the  consular  seal  and  make  a  record  of  it  in  the  archives 

S.  Mis.  KL'-voL.  11 17  737 


§  261.]  MARRIAGE.  [CHAP.  X. 

of  tbe  cousulate.  A  inarriage  thus  celebrated  between  xVmericau  citi- 
zeusiu  a  I'oieign  coiiutry,  and  not  in  contravention  of  the  laws  of  such 
foreign  country,  if  performed  by  a  minister  of  tbe  Gospel  or  other  per- 
son who  by  the  laws  of  the  country  in  which  it  takes  place  is  author- 
ized to  solemnize  marriages,  and  between  persons  who  would  bo  com- 
petent to  marry  in  the  District  of  Columbia,  is  held  by  the  laws  of  the 
United  States  to  be  valid  in  the  United  States." 

Mr.  Fielingbuyecn,  Sec.  of  State,  to  Mr.   Kolinstamm,  Dec.  20,  18S3.     MSS. 
Dom.  Let. 

"(1)  In  the  oi)inion  of  the  Secretary  the  act  of  Congress  to  which 
you  refer  dous  not  aHect  marriage  of  persons  domiciled  in  the  particu- 
lar Stiites  of  the  Union.  Each  of  these  States  is  supreme  in  its  legis- 
lation as  to  all  matters  relating  to  the  conditions  of  marriage,  as  well 
as  of  divorce,  within  its  limits. 

"  (2)  Even  to  marriage  abroad  of  persons  domiciled  in  the  District  of 
Columbia  or  in  the  Territories  over  which  Congress  has  jurisdiction,  the 
presence  and  attestation  of  a  consular  officer  is  not,  under  the  act  of 
Congress,  necessary.  Such  marriages,  if  otherwise  valid  in  the  District 
of  Columbia  or  in  the  Territories,  would  be  valid,  although  not  solem- 
nized before  a  consular  officer.  Xor  does  the  presence  of  a  consular 
officer  by  itself  give  validity  to  marriages  otherwise  invalid. 

"  (3)  It  is  very  questionable  whether,  even  as  to  marriages  of  persons 
domiciled  in  the  District  of  Columbia  and  in  the  Territories,  the  act  of 
Congress  has  any  effect  out  of  those  jurisdictions.  It  is  a  principle  of 
international  law  that  the  forms  of  solemnizing  marriages  must  conform 
to  the  rules  established  by  the  law  of  the  place  of  solemnization.  Xo 
particular  sovereign  can  withdraw  from  the  operation  of  that  principle 
the  marriages  of  his  subjects  when  solemnized  abroad.  He  may  say, 
*  In  my  own  dominions  these  marriages  shall  be  valid,'  but  he  cannot 
by  such  a  decree  change  the  rule  of  international  law  in  this  respect 
which  is  accepted  by  foreign  nations.  In  other  words,  the  general 
position  is,  that  a  local  law  cannot  extraterritorially  affect  the  law  of 
nations.  [Supra,  §§  9  ff.)  SVc  have  applied  this  rule  to  cases  where  for- 
eign sovereigns  have  attempted  by  local  decrees  to  vary  international 
law  in  respect  to  blockade  and  to  piracy.  There  is  no  reason  why  the 
same  rule  should  not  be  applied  in  respect  to  marriage,  and  the  British 
Government  in  its  instructions  to  its  diplomatic  agents  has  been  careful 
to  make  this  distinction.  It  has  told  them  that  while  marriages  of  British 
subjects  abroad  in  ambassadors'  residences  would  be  valid  in  the  British 
dominions,  they  are,  in  the  opinion  of  the  Crown  officers,  '  not  necessarily 
valid  without  the  dominions  of  Her  Majesty.'  (See  Lord  Stanley's  letter 
of  February  8,  18G7,  cited  in  2  Eraser  on  Husband  and  Wife  (2d  etl., 
Edinburgh,'  1878),  1312.) 

"(1)  There  is  no  reason,  however,  why  a  consul  should  not  i)ermit 
marriages  of  American  citizens,  no  matter  what  may  be  tlieir  domicil, 
738 


CHAP.  X.J  MODE    OF    SOLEMNIZATIOX.  [§261. 

to  be  solemnized  in  his  presence  whenever  they  desire  it.  While  he 
cannot  either  make  or  unmake  such  marriage,  he  gives  in  his  certifi- 
cate a  memorandum  which  will  enable  him,  when  living,  to  refresh  his 
memory  when  called  as  a  witness  to  the  fact  of  the  marriage,  and, 
after  his  death,  such  a  memorandum  may  be  admissible  as  document- 
ary proof  of  the  marriage.  The  fact,  also,  that  the  marriage  took  place 
in  his  presence  would  lead  to  the  inference  that  it  was  entered  into 
advisedly. 

^'(5)  The  conclusion,  which  cannot  be  too  strongly  impressed,  is  that 
when  a  marriage  is  solemnized  by  citizens  of  the  United  States  in  a 
foreign  civilized  country,  the  form  of  solemnization  must  be  in  accord- 
ance with  that  prescribed  by  the  local  civil  law.  If  the  mode  of  sol- 
emnization is  good  by  this  law,  it  is  good  everywhere ;  if  it  is  bad  by 
this  law,  it  is  bad  in  all  countries  which  do  not  specially  validate  it  by 
statute.  It  is  true  that  there  are  certain  exceptions  to  this  rule,  in 
respect  to  local  forms  which  are  oppressive  or  which  are  impossible,  or 
which  militate  against  the  rational  religious  convictions  of  the  parties; 
but  these  exceptions  are  so  rare  that  it  is  not  necessary  here  to  notice 
them,  or  to  regard  them  as  in  any  way  diminishing  the  force  of  the  rule 
that  the  mode  of  solemnization  must  be  in  accordance  with  the  law  of 
the  place  of  solemnization. 

"It  is  true,  also,  that  in  some  European  countries  the  law  is  that  it  is 
sufficient  to  validate  the  marriages  of  foreigners  within  their  boun- 
daries that  the  law  of  the  domicil  of  the  parties  be  observed.  But  this 
is  only  an  application  of  the  rule  that  the  law  of  the  place  of  solemni- 
zation must  in  su^ch  cases  be  supreme.  When  it  says,  '  You  can  follow 
the  law  of  your  domicil,'  it  gives  effect  to  the  law  of  such  domicil  only 
because  it  itself  chooses  so  to  ordain. 

"In  conclusion,  the  importance  of  the  maintenance  in  this  respect  of 
the  supremacy  of  the  law  of  the  place  of  solemnization  cannot  be  too 
highly  estimated,  nor  can  our  consular  and  diplomatic  representatives 
impress  too  strongly  this  rule  upon  those  who  come  to  them  for  advice. 
Any  variation  from  this  rule  may  lead  to  the  annulling  of  marriages 
entered  into  in  good  faith,  and  in  the  bastardizing  of  the  issue  of  such 
marriages. 

"It  is  proper  to  add  that  the  object  of  this  instruction  is  not  to  de- 
termine as  to  the  validity  of  any  particular  marriages  that  have  taken 
place  or  may  hereafter  take  place.  Questions  of  this  class  are  for  the 
judicial  tribunals.  The  function  of  this  Department  is  sim])ly  to  in- 
struct its  diplomatic  representatives  in  civilized  countries  what  advice  to 
give  citizens  of  the  United  States  aj)plying  to  them  for  information  as 
to  the  i)roper  mode  of  solemnizing  marriages,  and  the  answer  must  be 
that  the  ceremonial  prescribed  by  the  law  of  the  place  of  the  ceremony 
must  !)(!  adopt('<l.  Tliey  should  also  be  advised  that  the  act  of  Congress 
above  referred  to  cannot  oi)erate  outside  of  the  District  of  Coliinibia 
and  the  Territories,  and  that  even  to  persons  domiciUd  in  tlic  latter 


§  261.]  MARRIAGE.  [CUAP.  X. 

jurisdictions  it  is  a  matter  of  doubt,  which  cau  ouly  bo  settled  iu  each 
case  by  judical  decision,  whether  the  act  would  be  regarded  by  foreign 
courts  as  chaugiug,  so  far  as  concerns  their  action,  the  rule  of  interna- 
tional law  above  stated." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Wiucliester,  Aug.  15, 1885.     MSS.  lust.,  SwLtz.; 
For.  Rel.,  1885. 

''This  Department  has  never  made  any  publication,  in  the  nature  of 
a  report  or  otherwise,  of  the  requisites  of  a  valid  marriage  in  the  various 
states  of  Europe.  The  course  of  this  Department  has  been  to  adviso 
citizens  of  the  United  States  desiring  to  be  married  abroad  to  comply 
with  the  law  of  the  place  of  the  performanceof  the  marriage  with  refer- 
ence to  its  celebration.  Marriages  so  celebrated  are  generally  recog- 
nized as  valid  everywhere.  To  this  rule,  however,  requiring  the  cere- 
mony to  be  i)erformed  according  to  the  law  of  the  place  where  the 
marriage  occurs,  there  are  certain  exceptions ;  as  where  the  marriage 
is  performed  in  a  barbarous  land,  or  the  law  of  the  place  of  celebration 
imposes  conditions  impossible  of  performance  or  repugnant  to  the  con- 
science of  the  parties.  But  the  general  rule  applicable  to  civilized 
countries  is  that  the  ceremony  must  be  performed  according  to  the  law 
of  the  place  of  performance." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Hodges,  Nov.  20,  1885.     MSS.  Dom.  Let, 

"  By  the  law  of  nations  the  forms  of  solemnization  of  a  marriage  must 
be  in  accordance  with  the  law  of  the  place  of  solemnization,  and  the 
ouly  exceptions  are  when  those  forms  are  such  as  the  parties  cannot 
conscientiously  comply  with,  or  when  the  solemnization  is  in  a  barbar- 
ous or  semi-civilized  land.  It  is  true  that  it  is  said  by  some  authorities 
that  a  marriage  in  a  foreign  legation  is  governed  only  by  the  laws  of  the 
country  such  legation  represents,  but  this  is  so  much  a  matter  of  doubt 
that  the  British  foreign  office  has  instructed  its  diplomatic  agents  that 
although  such  marriages,  performed  iu  British  legations,  are  valid  in 
Great  Britain  by  statute,  their  validity  elsewhere  cannot  be  assumed. 
(See  my  instructions  to  Mr.  Winchester  of  August  15,  1885,  printed  in 
Foreign  Belations,  1885,  p.  807.)  Under  these  circumstances  you  very 
properly  declined  to  sanction  the  solemnization  of  the  marriage  in  ques- 
tion until  you  have  information  that  it  would  be  solemnized  in  con- 
formity with  Belgian  law." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Tree,  June  5,  1886.     MSS.  Inst.,  Belgium. 

"  It  is  enacted  by  statute  that  '  marriages  in  presence  of  any  consular 
officer  of  the  United  States  in  a  foreign  country,  between  persons  who 
would  be  authorized  to  marry  if  residing  in  the  District  of  Columbia, 
shall  be  valid  to  all  intents  and  purposes,  and  shall  have  the  same  effect 
as  if  solemnized  within  the  United  States.'  As  under  the  Constitution 
of  the  United  States  the  States  have  exclusive  power  of  determining 
the  conditions  of  marriage  and  divorce  as  to  persons  domiciled  within 
their  borders,  this  statute  only  covers  marriages  by  persons  domiciled 
in  the  District  of  Columbia  or  in  the  Territories. 

740 


CHAP.  X.]  MODE    OF    SOLEMNIZATION.  [S^  261. 

''  The  statute  does  not  exclude  modes  of  solemuizatiou  other  than  that 
in  presence  of  a  consular  oflficer.  Marriages  abroad,  by  citizens  of  the 
District  of  Columbia,  or  of  the  Territories,  when  not  in  the  presence  of 
a  consular  otficer,  if  otherwise  valid,  are  not  invalidated  by  the  above 
statute.  The  statute  does  not  authorize  the  consular  officer  to  perform 
the  ceremony.    All  that  is  prescribed  is  that  it  is  to  be  in  his  presence. 

''As  it  is  a  principle  of  international  law  that  the  law  of  the  place  of 
solemnization  shall,  whenever  this  is  practicable,  determine  the  mode 
of  solemnization,  consuls,  when  giving  their  sanction  to  a  proposed  mar- 
riage of  this  class,  should  be  satisfied  (1)  that  the  parties  are  domiciled 
in  the  District  of  Columbia  or  in  the  Territories,  and  (2)  that  the  re- 
quirements of  the  law  of  the  place  of  celebration  should  be  as  far  as 
practicable  complied  with.  It  is  not  intended,  however,  in  these  in- 
structions, in  any  way  to  question  or  modify  the  principle  of  interna- 
tional law  that  while  the  form  of  solemnizing  marriage  is  determined 
ordinarily  by  the  law  of  the  place  of  solemnization,  exceptions  are  rec- 
ognized, (1)  when  it  is  impossible  to  nse  such  form  ;  (2)  when  it  is  re- 
pugnant to  the  religions  convictions  of  the  parties ;  (3)  when  it  is  not 
imposed  on  foreigners  by  the  sovereign  prescribing  it ;  (4)  when  the 
ceremony  is  performed,  as  will  be  seen  in  a  subsequent  clause,  in  a  non- 
Christian  or  semi-civilized  country. 

"In  Massachusetts,  where  the  service  must  be  performed,  except  in 
the  case  of  Quakers,  by  a  licensed  minister  or  a  justice  of  the  peace,  a 
statute  has  been  adopted  validating  marriages  by  a  consul  or  diplo- 
matic agent  of  the  United  States.  This  may  be  the  case  with  other 
States. 

"As  a  general  rule,  matrimonial  capacity  is  determined  by  the  law  of 
the  place  of  domicil  of  the  party  in  question. 

"Solemnization  by  a  clergyman  or  magistrate  is  not  necessary  to  the 
validity  of  a  marriage  in  most  jurisdictions  in  this  country. 

"The  rule  as  tojirevalence  of  local  forms  does  not  apply  to  non-Chris- 
tian or  semi-civilized  countries  where  consular  courts  are  established. 
In  those  countries  the  consular  officer  will  have  to  determine,  so  tar  as 
concerns  persons  domiciled  in  the  District  of  Columbia  or  in  the  Terri- 
tories, whether  the  parties  would  be  authorized  to  marry  if  residing  in 
the  District  of  Columbia  or  in  one  of  the  Territories.  His  duty,  so  far 
as  concerns  persons  domiciled  in  a  State,  is  to  inquire  whether  they  are 
authorized  to  marry  in  such  State.  It  is  held,  also,  in  respect  to  a  con- 
sular officer  in  such  countries  that  the  right  to  perform  marriage  is  inci- 
dent to  the  judicial  office,  and  consequently  that  he  may  solemnize  the 
ceremony  if  it  is  the  wish  of  the  parties  that  he  should  do  so.  It  is 
deemed  preferable,  however,  in  such  cases,  where  there  is  a  duly  quali- 
fied minister  of  a  religious  denomination  whose  services  can  be  ob- 
tained, that  the  ceremony  should  be  performed  by  him,  and  that  the 
consular  officer  should  confine  himself  to  granting  the  certificate  before 
mentioned. 

"The  statutory  provisions  refer  only  to  consuls.  It  is  not  unusual 
for  Americans  abroad  to  ask  permission  to  have  a  marriage  ceremony 
performed  in  the  legation,  and  in  the  i)resence  of  the  minister.  There 
is  no  reason  why  a  minister  or  cliarg6  should  not  comply  with  this  re- 
quest. I3ut  it  is  proper,  at  tlie  same  time,  to  inform  the  parties  making 
the  application  that,  in  the  opinion  of  the  Department,  a  (•('remon\'  of 
marriage,  performed  witiiin  the  itrcciiictsof  a  legation,  sliould,  with  the 
above  limitations,  comply  with  tlie  requirements  of  the  laws  of  tlu' coun- 
try within  which  tlie  legation  is  situated. 

741 


§  261.]  MARRIAGE.  [CHAP.  X. 

"  Wlicuevor  ;m  ;ii)i)lic;iti()ii  is  made  i'or  the  use  of  Ihe  le.ualion  for 
such  a  i)inpose,  it  will  be  the  duty  of  the  principal  diplomatic  repre- 
sentative to  iu(iuire  whether  the  ])arties  may  lawfully  marry  accord- 
ing to  the  laws  of  the  country  in  which  the  legation  is  situated,  and 
whether  the  i)roi)er  steps  have  been  taken  to  emible  the  marriage  cere- 
mony to  be  legally  performed  according  to  such  laws.  If  either  of  these 
inquiries  should  be  answered  in  the  negative,  or  if  the  case  does  not 
fall  within  one  of  the  exceptions  above  stated,  it  will  be  his  duty  to  in- 
form the  ajijjlicants  that  he  cannot  permit  the  ceremony  to  be  performed 
in  the  legation,  as  there  may  be  grave  doubts  respecting  its  validity. 

"If  it  is  desired  in  such  cases  by  citizens  of  the  District  of  Columbia 
or  of  the  Territories  to  avail  themselves  of  the  statute  above  recited, 
then  the  dii)lomatic  representative  should  inform  them  that  under  the 
laws  of  the  United  States  it  will  be  necessary  to  have  the  iniucii)al 
consular  ofQcer  of  the  United  States  present,  and  he  should  give  them 
an  opportunity  to  have  such  officer  i)reseiit,  if  they  desire  it. 

"In  all  cases  of  nmrriage  before  a  consular  oOicer,  the  officer  shall 
give  to  each  of  the  parties  a  certiticato  of  marriage,  and  shall  also  send 
a  certificate  thereof  to  the  Department  of  State,  there  to  be  kept. 

"This  certificate  must  be  under  the  official  seal  and  must  give  the 
names  of  the  parties,  their  ages,  places  of  birth  and  residence,  the  date 
and  place  when  and  where  the  ceremony  was  i)erformed,  and  state  that 
the  marriage  took  place  before  the  consular  officer  giving  the  certiHcate. 
(Form  Ko.  87  of  the  Consular  IJegulations  of  1881.) 

"The  statute  (Kev.  Stat.,  §4082)  does  not  authorize  a  diplomatic 
officer  to  witness  or  ccrtifv  to  a  marriage  ceremony  jierforraed  before 
him." 

Printed  Peis.  Inst.  Dip.  Agents,  1835.     See  important  instructions,  Apjr.,  vol. 
iii,  5  2G8. 

The  general  principle  in  the  United  States  is  that  the  validity  of  a 
marriage  is  to  be  determined  by  the  law  of  the  place  where  it  is  cele- 
brated. But  there  is  an  exception  to  this  rule,  when  parties  are  sojourn- 
ing in  a  foreign  country  where  the  law  is  such  that  it  is  impossible  for 
them  to  contract  a  marriage  under  it.  Such  is  the  case,  where,  as  in 
some  foreign  countries,  the  local  law  recognizes  a  marriage  as  valid 
when  contracted  according  to  the  law  of  domicil,  and  where  the  law 
of  the  country  goes  w^ith  the  parties,  as  in  the  case  of  an  invading  army 
and  its  followers. 

7  Op.,  18,  Cusbing,  1854. 

Marriages  celebrated  by  a  consul  of  the  United  States  in  any  foreign 
country  of  Christendom,  between  citizens  of  the  United  States,  would 
have  no  legal  effect  here,  save  in  one  of  the  exceptional  ca.ses  of  its  being 
impossible  for  the  parties  to  marry  by  the  lex  loci.  American  consuls 
Lave  no  such  i^ower  given  them  by  act  of  Congress,  nor  by  the  common 
law  of  marriage  as  understood  in  the  several  States.  And  marriage,  in 
the  United  States,  is  not  a  Federal  question  (save  as  to  places  under 
the  absolute  legislative  jurisdiction  of  the  United  States),  but  one  to 
be  determined  by  the  several  States. 

Ibid. 

The  effect  of  the  act  of  1800  lias  Ijoen  already  discussed  in  tbis  section, 

742 


CHAP.  X.]  MATRIMONIAL    CAPACITY.  [§§  262,  263. 

A  consul  cauuot,  as  consul,  solemnize  a  marriage,  -wbetlier  lie  be  or 
not  a  subject  of  tbe  foreign  Government. 
7.  Op.,  342,  Cashing,  1855. 

(3)  Local  prescriptioxs  as  to  form  have  xo  extraterritorial  force. 

§  2G2. 

Persons  domiciled  in  a  State  in  wbicli  certain  formalities  of  marriage 
are  prescribed  can  marry  without  such  formalities  in  another  jurisdic- 
tion where  no  such  formalities  are  exacted,  unless  in  such  jurisdiction 
the  forms  of  the  place  of  domicil  are  held  to  be  obligatory. 
Supra,  $$  9,  2G1.    See  Wliart.  Confl.  of  Laws,  $  180. 

II.  MATRIMONIAL  CAPACITY. 

Determined  cy  xatioxal  policy. 

§  263. 

Three  distinct  theories  have  been  advanced  as  to  the  law  which  is  to 
determine  matrimonial  capacity.  The  first  is  the  law  of  the  place  of 
solemnization.  This  undoubtedly  holds  good  as  to  merely  formal  con- 
ditions, but  cannot  be  regarded  as  having  force  when  appealed  to  in  a 
State  where  the  competency  of  the  parties  rests  on  grounds  of  morality 
or  i)ublic  policy.  The  second  is  that  of  the  law  of  the  domicil  of  the 
parties,  to  which  the  same  objection  would  apply,  while  to  both  of  these 
tests  the  objection  of  uncertainty  extends.  (See  Whart.  Confl.  of  Laws, 
§  lG-4.)  A  third,  and  better  theory,  is  that  which  maintains  the  prev- 
alence in  such  cases  of  the  national  policy  of  the  country  in  which  the 
parties  assert  their  marital  rights.  No  civilized  nation  will  regard  per- 
sons living  within  its  borders  as  married  when  by  its  laws  or  policy  the 
union  is  incestuous,  polygamous,  or  otherwise  immoral  or  antagonistic 
to  national  policy.  (See  Keynolds  v.  U.  S.,  98  U.  S.,  145 ;  Whart.  Confl. 
of  Laws.  §§  131,  1G5.) 

743 


CHAPTER  XL 

EXTRADITION. 

I.  Ordinarily  no  kxiradition  without  trkaty,  ^  2G8. 

II.  Dkma>d  coxfinkd  to  trkaty  offenses,  §  2C)9. 

III.  Trial  to  be  oxly  for  offenses  enumerated  in  treaty,  $  270. 

IV.  CuiM)':  must  have  been  within  jurisdiction  of  demanding  state. 

(1)  Oulaiul,  $  271. 

(2)  Ou  ship-board,  $  27Ia. 

V.    No  extradition  for  political  offenses,  $  272. 

VI.      No  DEFENSE  THAT  DEFENDANT  IS  CITIZEN  OF  ASYLUM  STATE,  $  273. 

VII.  Must  be  specific  foreign  demand,  §  274. 

VIII.  State  governments  cannot  extradite,  $  275. 
IX.    Practice  as  to  arrest. 

(1)  Preliminary  executive  mandate,  $  276. 

(2)  Form  of  complaint  and  warrant,  $  276a. 

(3)  Mode  of  arresting  and  detention,  $  276&. 

X.  Evidence  on  which  process  will  be  granted,  $  277. 

XI.  Practice  as  to  review,  $  278. 

XII.  Practice  as  to  habeas  corpus,  $  279. 

XIII.  Practice  as  to  surrender,  $  280. 

XIV.  Expenses,  $  281. 

XV.    Treaties  retrospective,  ^  282. 

I.  ORDINARILY  NO  EXTRADITION  WITHOUT  TREATY. 

§  268. 

As  a  peucralrule,  there  can  be  no  extradition  to  a  foreign  state  witU- 
out  treaty. 

Mr.  Jefferson,  Sec.  of  State,  to  Mr.  Genet,  Sept.  12,  1793.  1  Am.  St.  Pap.,  (For. 
Eel.),  177.  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Price,  Nov.  29,  1834.  MSS. 
Dom.  Let.  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Serurier,  Aug.  23,  1834. 
MSS.  Notes,  France.  Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Kogers,  July  28, 
1837.  MSS.  Dom.  Lot.  Mr.  Calhoun,  Sec.  of  State,  to  Mr.  King,  July  25, 
1844.  MSS.  Inst.,  France.  Mr.  Clayton,  Sec.  of  State,  to  Mr.  Cazenovo, 
Feb.  25,  1850.  MSS.  Notes,  Germ.  Mr.  Fish,  Sec.  of  State,  circular,  Oct. 
23,  1873.  MSS.  Inst.,  Arg.  Rep. ;  Mr.  Fish,  Sec.  of  State,  to  Mr.  Bristow, 
June  20,  1876.  MSS.  Dom.  Let.  Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr. 
Nogueiras,  Nov.  27,  1882.     MSS.  Notes,  Portngal. 

744 


CHAP.  XI.]    ORDINARILY  NO  EXTRADITION  WITHOUT  TREATY.    [§  268. 

Ou  the  other  laud,  there  have  beeu  several  cases  iu  which  extradiliou 
has  been  asked  from  a  foreign  state  as  an  act  of  courtesy. 

See  Mr.  Van  Buren,  Sec.  of  State,  to  Mr.  Vaugbau,  July  '21,  1829.     MSS.  Notes, 

For.  Leg.   Mr.  Livingston,  Sec.  of  State,  to  Governor  of  Canada,  Aug.  1, 18S1 ; 

ibid.    Mr.  Brent,  Acting  Sec.  of  State,  to  Mr.  Porter.  Sept.  G,  1828.    MSS. 

Dom.  Let.    Mr.  Marcy,  Sec.  of  State,  to  Mr.  Seibela,  July  16,  1855.     MSS. 

Inst.,  Belgium.     Mr.  Seward,  Sec.  of  State,  to  Mr.  McMath,  Apr.  28,  1862. 

MSS.  Inst.,  Barb.  Powers.    Mr.  Evarts,  Sec.  of  State,  to  Mr.  Porter,  Nov. 

19,  1878.     MSS.  Dom.  Let.     Mr.  Evarts,  Sec.  of  State,  to  Mr.  Welsb,  Jan. 

9,  1379.     MSS.  Inst.,  Gr,  Brit.     See  App.,  vol.  iii,  ^  268. 
As  to  arrest  and  extradition  of  Tweed  in  1876,  witbout  treaty,  see  Mr.  Fisb, 

Sec.  of  State,  to  Mr.  Adee,  Nov.  3,  1878;  Mr.  Fisb  to  Mr.  Cusbing,  Nov.  3, 

1876;  same  to  same,  Dec.  8,  1876.     MSS.  Inst.,  Spain. 
As  to  Surratt's  arrest  in  Alexandria,  iu  1866,  for  tbe  assassination  of  Mr.  Lincoln, 

see  Mr.  Seward,  Sec.  of  State,  to  Mr.  Hale,  Alexandria,  Jan.  23,  1867. 
As  to  consular  power  in  eastern  lands,  see  App.,  vol.  iii,  §  268. 

'*  The  law  of  nations  embraces  no  provision  for  the  surrender  of  per- 
sons who  are  fugitives  from  the  offended  laws  of  one  country  to  the 
territory  of  another.  It  is  only  by  treaty  that  such  surrender  can  take 
place." 

Mr.  Rusb,  Sec.  of  State,  to  Mr.  Hyde  de  Nouville,  Apr.  9,  1817 ;  MSS.  Notes, 
For.  Leg.     See  Wbart.  Confl.  of  Laws,  $  941 ;  Wbart.  Cr.  PL  and  Pr.,  $  38. 

Unless  there  be  treaty  or  legislative  authority  the  President  of  the 
United  States  cannot  call  upon  the  governor  of  a  State  to  surrender  a 
fugitive  criminal  to  another  country. 

Mr.  Forsytb,  Sec.  of  State,  to  Mr.  Spencer,  Aug.  7,  1839.     MSS.  Dom.  Let. 

In  this  letter  the  question  of  the  relation  of  Federal  and  State  gov- 
ernments as  to  extradition  are  discussed  in  detail. 

"  The  undersigned  must  beg  leave  to  differ  entirely  from  M.  de  Ar- 
ga'iz  in  regard  to  the  rule  of  law  for  delivering  up  criminals  and  fugitives 
from  justice.  Although  such  extradition  is  sometimes  made,  yet,  in  the 
absence  of  treaty  stipulation,  it  is  always  matter  of  comitj'  or  courtesy. 
Xo  Government  is  understood  to  be  bound  by  the  positive  law  of  na- 
tions to  deliver  up  criminals,  fugitives  from  justice,  wlio  have  sought 
an  asylum  within  its  limits." 

Mr.  Webster,  Sec.  of  State,  to  Mr.  de  Argaiz,  June  21,  1842.      MSS.  Notes, 
Spain. 

"  But  the  practice  of  nations  tolerates  no  right  of  c\<^radition.  What- 
ever elementary  authors  may  say  to  the  contrary,  one  nation  is  not 
bound  to  deliver  up  persons  accused  of  crimes  who  have  escaped  into 
it.s  torritorics  on  the  demand  of  another  nation  against  whose  laws  the 
allegL'd  crime  was  committed.  Tlie  (lovcrnment  of  the  United  States 
lia.s  from  the  very  beginning  acted  on  this  principle.  Mr.  Jefferson, 
when  Secretary  of  State  under  the  administration  of  General  Wa.shing- 
ton,  declared  that  'the  laws  of  this  connlry  take,  no  notice  of  crimes  com- 
mitted out  of  their  Jurisdiction.     'I'iie  most  atrocious  offender,  coming 

71.-. 


§  268.]  EXTRADITION.  [CHAP.  XI. 

witliiu  tlioir  pale,  is  loceived  by  them  as  an  iiniuceiit  luai),  and  tlioy 
bave  authorized  no  one  to  seize  or  deliver  him.'  It  has  been  contrary 
to  the  practice  of  the  United  States  even  to  request  as  a  fiivor  that  the 
Government  of  another  country  should  deliver  up  a  fugitive  from  crim- 
inal justice,  because  under  our  laws  we  possess  no  power  to  reciprocate 
such  an  act  of  grace.  Since  I  came  into  the  Department  of  State  the 
President,  after  full  deliberation  with  his  Cabinet,  refused  for  this  reasoa 
to  prefer  such  a  request  to  the  Government  of  Texas.  The  truth  is, 
that  it  has  been  for  a  long  time  well  settled,  both  by  the  law  and  prac- 
tice of  nations,  that,  without  a  treaty  stipulation,  one  Government  is 
not  under  any  obligation  to  surrender  a  fugitive  from  justice  to  another 
Government  for  trial." 

Mr.  Bucbauan,  Sec.  of  Stale,  to  Mr.  Wise,  Sept.  27,  1845.     MSS.  Inst.,  Brazil. 

In  Argiielles's  case,  1864  (cited  in  "Whart.  Confl.  of  Laws,  §  941;  Spear 
on  Extrad.,  1),  the  defendant  was  delivered  to  the  Spanish  Government 
by  Mr.  Seward  without  treaty,  and  the  proceedings  were  so  summary 
as  to  prevent  a  review  on  habeas  corpus. 

As  sustaining  Mr.  Seward's  view,  see  Washburn,  in  re,  4  Johns.  Ch.,  106. 
As  to  good  ofHces  in  such  cases,  when  requested  by  a  State,  see  Mr.  Seward  to 
Mr.  Salgar,  Mar.  30,  1865.    MSS.  Notes,  Colombia. 

Mr.  Seward's  course  in  the  Argiielles  case  was  supported  by  him  in 
a  letter  to  the  House  Judiciary  Committee,  June  24,  18G4. 

"  The  elaborate  letter  of  Mr.  Seward  of  Juno  24,  18G4,  to  the  chair- 
man of  the  Judiciary  Committee  of  the  House  of  Eepresentatives  (a 
copy  of  which  was  inclosed  in  Mr.  Seward's  ISTo.  108J  to  Mr.  Koerner  of 
the  same  date)  lays  down  and  enforces  the  following  affirmative  ijropo- 
sitions : 

"  1.  That  'the  object  to  be  accomplished  in  all  these  cases  is  alike  in- 
teresting to  each  Government,  namely,  the  punishment  of  malefactors — 
the  common  enemies  of  every  society.  While  the  United  States  afford 
an  asylum  to  all  whom  i^olitical  differences  at  home  have  driven  abroad, 
it  repels  malefactors,  and  is  grateful  to  their  Governments  for  under- 
taking their  pursuit  and  relieving  us  from  their  intrusive  presence.' 
This  doctrine,  originally  put  forth  by  Attorney-General  Gushing  in  an 
oflBcial  opinion  dated  October  4,  1853,  was  quoted  and  adopted  by  Mr. 
Seward. 

"2.  That  'the  true  portion  of  the  national  obligation  and  authority 
for  the  extradition  of  criminals'  may  be  found  klefined  and  established 
by  the  laic  of  nations.'' 

"3.  That 'this  obligation  and  authority,  under  the  Constitution  of 
the  United  States,  and  in  the  absence  of  treaty  stipulations  and  statutory 
enactments,  rests  with  the  President  of  the  United  States.' 

"  4.  That  '  the  sole  elements  of  consideration  upon  which  the  Ex- 
ecutive is  to  determine  whether  or  not  a  proposed  case  of  extradition 
740 


CIIAr.  XI.]     ORDINARILY  NO  EXTRADITION  WITHOUT  TREATY.     [§  2G8. 

should  or  should  not  call  forth  the  exercise  of  this  power  and  duty 
under  the  law  of  nations,  and  the  precepts  of  humane  and  Christian 
civilzaition'  are '  the  traits  of  the  alleged  criminality  as  involving  heinous 
guilt  against  the  laws  of  uuiversal  morality  and  the  safety  of  human 
society  and  the  gravity  of  the  consequences  which  will  attend  the  exer- 
cise of  the  power  in  question  or  its  refusal.' 

''Whether  these  propositions  'would  or  would  not  commend  them- 
selves to  the  judgment  of  the  President,  should  a  case  arise  for  their 
application  to  a  fugitive  from  justice  from  a  state  with  whom  we  have 
no  extradition  convention,  found  w'ithiu  the  jurisdiction  of  the  United 
States,  about  which  I  express  no  opinion,  it  seemed  clear  that  this  Gov- 
ernment was  not  iu  a  position  to  dispute  the  right  of  Spain  to  apply 
them  in  Bidwell's  case  on  the  demand  by  Great  Britain  for  his  sur- 
render." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Apr.  30,  1873.    MSS.  Inst.,  Spain. 
To  same  effect,  see  Mr.  Fisb  to  Mr.  Beardsley,  June  30,  1873.    MSS.  lust.,  Barb. 
Powers. 

"The  well-considered  reasons  given  by  my  predecessor,  Mr.  Seward, 
for  the  action  of  this  Government  iu  Argiielles's  case  would  undoubtedly 
be  presented  by  Spain  as  an  answer  to  any  representation  that  might 
be  made  by  this  Government  as  to  the  effect  of  the  absence  of  an  extra- 
dition treaty  between  Great  Britain  and  Spain,  and  it  is  difficult  to  see 
how  they  could  be  av^oided  as  a  precedent." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Sickles,  Apr.  30,  1873.     MSS.  Inst.,  Spain. 

"A  resolution,"  says  Mr. Dana,  commenting  on  Argiielles's  case, "  intro- 
duced into  the  Uouse  of  Kepresentatives,  condemning  the  act  *  *  * 
was  rejected  by  a  large  majority,  and  the  subject  referred  to  a  commit- 
tee, but  it  was  followed  by  no  action  of  Congress." 

Dana's  Whcatou,  in  loco,  $  115,  note  73. 

"I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  24th 
instant,  in  which,  referring  to  a  communication  from  the  Department 
of  Justice  to  this  Department,  which  had  found  its  way  into  the  public 
newspapers,  you  express  the  opinion  that  it  would  render  almost  certain 
the  refusal  of  this  Government  to  accord  the  extradition  of  Carl  Vogt, 
or  Stupp,  to  the  German  Government,  and  you  accordingly  renew  the 
request  formerly  made,  that  Vogt  may  be  delivered  up  to  Belgium  as 
an  act  of  comity. 

"In  the  i)ersoual  interview  which  I  had  with  you  on  this  subject,  sim- 
ultaneously with  the  reception  of  your  note,  I  was  able  to  inform  you 
that  this  Government  had  already  at  that  time  taken  into  considera- 
tion whether,  in  the  absence  of  a  treaty  with  Belgium,  the  laws  of  the 
United  States  wotdd  permit  the  surrender  of  this  criminal  to  your  (Jov- 
ernment.  1  informed  you  at  the  same  time  tliat  while  the  United  States 
do  not  admit  an  obligation  under  the  principles  of  international  law, 
which  are  recognized  by  Governments,  to  surrender  from  within  thoir 

747 


§  268.]  EXTRADITION.  [CHAP.  XI. 

jurisdiction  iiiul  the  putectioii  of  their  laws  ii  person  accused  of  crime, 
in  order  that  he  might  be  tried  by  a  dillerent  system  of  hiws  and  juris- 
prudence, yet  that,  under  the  circumstances  of  this  case,  the  Secretary 
of  State  had  felt  disposed  to  examine  into  the  power  to  surrender  Yogt 
to  your  Government  as  an  act  of  comity. 

"The  result  of  that  examination  has,  to  say  the  least,  raised  grave 
doubts  as  to  the  power  of  the  President  to  do  so.  The  authority  of  the 
Executive  to  abridge  personal  liberty  within  the  jurisdiction  of  the 
United  States,  and  to  surrender  a  fugitive  from  justice  in  order  that  ho 
maj'  be  taken  away  from  their  jurisdiction,  is  derived  from  the  statutes 
of  Congress,  which  confer  that  power  only  in  cases  where  the  United 
States  are  bound  hy  treaty  to  surrender  such  fugitives,  and  have  a  re- 
ciprocal right  to  claim  similar  surrender  from  another  power.  I  am, 
therefore,  constrained  to  decline  to  comply  with  your  request  for  tho 
surrender  of  Carl  Vogt. 

"  I  deem  it  proper  to  add,  with  reference  to  your  remarks  upon  the 
opinion  of  tho  Attorney-General,  that  correspondence  of  this  nature  is 
regarded  as  domestic  and  confidential,  and  is  not  esteemed  to  be  a 
proper  subject  of  criticism  or  comment  on  the  part  of  the  representa- 
tives of  other  powers." 

Mr.  J.  C.  B.  Davis,  ActiDg  Sec.  of  State,  to  Mr.  Delfosse,  July  2H,  1873.     MSS. 
Inst.,  Belgium;  For.  Eel.,  1873. 

"  Some  time  since  one  William  J.  Sharkey,  who  was  tried  and  con- 
victed of  murder  in  the  city  of  New  York,  escaped  to  Cuba,  and  soon 
made  himself  known  to  the  police  by  his  bad  conduct  in  Havana. 

"  The  authorities  of  New  York,  anxious  to  obtain  his  return  to  justice, 
have,  on  several  occasions,  made  apx)lications  to  this  Department  for 
assistance  in  reference  to  this  question. 

"  Ui^ou  a  careful  review  of  all  the  facts,  and  considering  our  relations 
with  Spain,  it  was  adjudged  that  in  the  absence  of  any  treaty  of  extra- 
dition, this  Government  could  not,  with  propriety,  request  the  actual 
return  of  Sharkey  to  the  State  of  New  York. 

"At  the  same  time  the  officials  of  that  State  were  informed  that  the 
Government  would  place  no  obstacles  in  the  way  of  his  surrender, 
should  the  Spanish  officials  on  the  island  propose  to  order  it. 

"  Some  two  months  since  Mr.  Hall,  in  his  No.  190,  informed  the  De- 
partment that  he  was  inclined  to  think  that  the  authorities  of  Cuba 
would  make  no  objection  to  the  delivery  of  Sharkey  without  the  formali- 
ties of  an  extradition  process. 

''The  Department,  in  reply  thereto,  under  date  of  March  i  ultimo, 
informed  Consul-General  Hall  that  it  was  deemed  inexpedient  for  the 
Government  to  make  any  formal  application  of  that  nature,  but  at  the 
same  time,  if  the  result  could  be  accomplished,  the  Department  would 
be  greatly  pleased  to  see  this  criminal  delivered  up  to  justice,  and  would 

748 


CHAP.  XI.J      ORDINARILY  NO  EXTRADITION  WITHOUT  TREATY.    [§  268. 

promptly  communicate  to  the  authorities  of  New  York  auy  information 
on  the  question." 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Cusliing,  May  11,  1875.  MSS. 
Inst.,  Spain. 

"You  will,  however,  in  no  event  (in  making  claim  for  extradition 
on  Chili)  give  the  Chilian  authorities  an  assurance  that  if  they  should 
comply  with  our  request  we  would  reciprocate  if  a  similar  request  should 
be  made  of  us." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Osborne,  Sept.  28,  1878.  MSS.  Inst.,  Chili. 
See  same  to  same,  July  3,  1879,  "^\liere  Mr.  Osborne  -was  instructed  to  use 
Ills  "  good  offices  "  to  obtain  a  surrender. 

"  In  the  absence  of  a  formal  treaty  of  extradition  between  this  coun- 
try and  Portugal,  it  is  clear  that  anj'^  steps  looking  toward  the  arrest  of 
Angell  and  his  return  to  this  country  for  trial  must  rest  on  the  spon- 
taneous consent  of  the  Portuguese  Government,  given  in  deference  to 
the  solicitation  of  that  of  the  United  States.  It  is  presumed  that  the 
Government  of  His  Majesty  will  have  no  difBculty  in  acceding  to  the 
prevalent  opinion  in  respect  of  extradition,  that  it  is  a  right  inherent  in 
the  sovereignty  of  a  nation  and  not  born  of  specific  treaty  obligations, 
while  on  the  other  hand  the  right  to  claim  the  extradition  of  a  criminal 
flows  exclusively  from  the  reciprocal  stipulations  of  treaty." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Moran,  Nov.  19,  1878.  MSS.  lust.,  Portugal. 
See,  however,  Mr.  Evarts,  Sec.  of  State,  to  Mr.  Shishkin,  June  18,  1879,  Dec. 
7,  1879.    MSS.  Notes,  Russia. 

The  eflect  of  the  act  of  Congress  of  August  3, 1882,  and  September 
25,  1882,  regulating  emigration,  while  it  may  sometimes,  incidentally, 
place  a  criminal  in  the  reach  of  the  law  officers  of  his  country,  cannot 
be  considered  as  designed  for  that  end,  or  as  committing  this  Govern- 
ment to  any  duty  in  the  nature  of  extradition. 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Willamov,  Oct.  27,  1682.  MSS.  Notes, 
Russia. 

In  Senate  Ex.  Doc.  98,  48th  Cong.,  1st  sess.,  is  President  Arthur's 
message  of  January  13, 1884,  on  Trimble's  case,  containing  the  following 
rei)ort  from  Mr.  Frelinghuysen,  Secretary  of  State: 

"The^undersigned  has  the  honor  to  acknowledge  the  receipt  of  Senate 
resolution  dated  February  11,  1884,  requesting  certain  information  in 
regard  to  the  case  of  Alexander  Trimble,  an  American  citizen  whoso 
extradition  has  recently  been  demanded  by  the  Government  of  Mexico, 
for  crimes  alleged  to  have  been  committed  by  him  in  that  liepublic,  from 
whose  justice  he  is  said  to  have  lied  and  sought  an  a.sylum  in  the  United 
States. 

"  In  resj)onse  to  the  said  resolution,  the  undersigned  submits  tlio  fol- 
lowing statement: 

"On  the  3l8t  of  January  last  the  consul-general  of  the  United  States 
informed  the  Secretary  of  State,  by  telegram  dated  al  Laredo,  tliatllu^ 

749 


(^^  268.]  EXTRADITION.  [CUAr.  XI. 

Mexican  authorities  demanded  the  extradition,  and  stating  that  the 
surrender  would  be  dangerous  as  a  precedent  not  provided  for  by  treaty. 
On  the  same  day  the  Secretary  of  State  auswered,  calling  attention  to 
the  sixth  article  of  the  treaty  with  Mexico,  addiug  that  this  clause  has 
been  held  to  be  mandatory,  and  that  under  it  an  American  citizen  is 
not  subject  to  surrender;  and  at  the  same  time  he  telegraphed  the  gov- 
ernor of  Texas  to  this  effect,  and  later  he  informed  the  governor  further 
by  telegraph  that  the  action  of  the  Secretary  of  State  was  based  upon 
the  belief,  supported  by  an  almost  uniform  course  of  decisions,  that  the 
President  had  no  power  in  the  premises;  but  that  the  question  being 
one  of  importance,  if  any  further  arrests  should  be  made  and  the  evi- 
dence be  found  to  be  sufiQcient  to  warrant  extradition  aside  from  the 
question  of  citizenship,  the  case  in  the  first  place  would  be  left  to  the 
determination  of  the  local  authorities,  the  President  requiring,  however, 
that  before  any  actual  surrender  the  accused  should  have  full  oppor- 
tunity for  a  hearing  before  the  Supreme  Court  of  the  United  States  on  a 
writ  of  habeas  corpus  and  certiorari  from  a  local  court,  either  Federal 
or  State. 

"In  the  mean  time  and  before  this  last  telegram  the  United  States 
marshal  telegraphed  the  undersigned  from  Austin,  stating  that  the 
prisoner  had  been  surrendered  by  the  extradition  agent  to  one  of  his 
deputies,  and  asking  what  authority  he  had  for  holding  him,  and 
whether  he  should  release  him.  The  undersigned  informed  the  marshal 
that  if  Trimble  was  an  American  citizen  he  was  not  subject  to  extradi- 
tion, and  could  not  lawfully  be  held  for  that  purpose. 

"On  the  same  day,  having  received  a  further  telegram  from  the  gov- 
ernor of  Texas,  and  representations  having  been  made  at  this  Depart- 
ment by  the  Mexican  minister,  the  undersigned  telegraphed  the  marshal 
to  hold  the  prisoner  pending  the  consideration  of  these  representations, 
unless  he  had  already  l)een  discharged ;  and  on  the  night  of  that  day 
the  marshal  replied  that  he  had  been  discharged. 

"In  view  of  the  importance  of  the  question,  the  undersigned  deemed 
it  his  duty  to  inform  the  President  fully  in  regard  to  the  matter,  and 
accordingly,  on  the  4th  instant,  submitted  to  him  a  report  of  the  case, 
of  which  the  following  is  a  copy : 

"  The  question  to  be  considered  is  not  whether  the  President  is  hound 
to  extradite  an  American  citizen  on  a  requisition  made  by  the  Eepublic 
of  Mexico — the  treaty  expressly  states  that  he  is  not  so  bound — but 
the  question  is  whether  the  President  has  the  power  under  the  treaty  to 
extradite  an  American  citizen.    The  treaty,  in  the  first  article,  says: 

",'  It  is  ngrcctl  that  the  contracting  parties  shall,  on  requisitions  made  in  their  names 
through  the  medium  of  their  respective  diplomatic  agents,  deliver  np  to  justice  per- 
sons who,  being  accused  of  the  crimes  enumerated  in  article  third  of  tho  present 
treaty,  committed  within  the  jurisdiction  of  the  requiring  party,  shall  seek  an  asylum 
or  shall  be  found  within  tho  territories  of  the  others.  ' 

750 


CHAP.  XI.J    ORDINAEILY  NO  EXTRADITION  WITHOUT  TREATY.    [§  268. 

"And  iQ  the  sixth  article  says: 

"  'Neither  of  the  contracting  parties  shall  be  bound  to  deliver  up  its  own  citizens 
under  the  stipulations  of  this  treaty.' 

"It  lias  been  claimed  that  by  the  comity  of  nations,  even  in  the  absence 
of  statute  law  or  treaty,  the  President  is  authorized  to  surrender  any 
one  found  within  the  United  States  against  whom  a  case  was  satisfac- 
torily made  of  having  been  guilty  of  a  crime  in  the  country  making  the 
demand.  The  authorities  show  that  it  is  one  of  the  doctrines  or  prin- 
ciples of  international  law,  tbat  by  comity  criminals  should  be  surren- 
dered by  one  nation  to  another.  Xations  with  which  we  had  no  extra- 
dition treaty  have,  on  several  occasions,  acting  on  this  principle,  made 
surrender  to  us  of  criminals.  And  it  is  further  claimed  that  there  is  no 
impracticability  in  the  President's  exercising,  as  may  the  Executives  of 
other  nations,  this  power  of  extradition,  as  the  Constitution  declares 
that  he  shall  execute  the  laws,  and  that  such  duty  is  not  confined  to 
executing  the  statute  law  of  the  United  States,  but  all  laws,  and  espe- 
cially that  international  law  which  has  reference  to  the  relation  of 
nations,  with  which  subject  the  Executive  is  charged. 

"  This  position  is  supported  by  at  least  one  authority.  In  1864,  Jos6 
Augustin  Argiielles,  while  lieutenant-governor  of  the  district  of  Colon, 
in  Cuba,  had  sold  into  slavery  a  number  of  negroes  who  had  been  taken 
from  a  captured  slave-trader  and  liberated.  Argiielles  then  fled  to  the 
United  States,  and  was,  by  Mr.  Seward,  given  up  to  the  Spanish  Gov- 
ernment in  the  absence  of  an  extradition  treaty.  In  his  report  to  Presi- 
dent Lincoln,  submitted  to  the  Senate  May  31, 1804^,  Mr.  Seward  said: 

"  'There  being  no  treaty  of  extradition  between  the  United  States  and  Spain,  nor 
any  act  of  Congress  directing  how  fugitives  from  justice  in  Spanish  dominions  shall 
be  delivered  up,  the  extradition  *  •  *  is  understood  by  this  Department  to  have 
been  made  in  virtue  of  the  law  of  nations  and  the  Constitution  of  the  United  States.' 

"While  I  have  stated  the  claim  that  is  put  forth  as  to  the  President's 
power  under  the  law  of  nations  and  the  Constitution  in  the  absence  of 
statutes  or  treaties,  I  find  a  long  and  almost  uniform  course  of  decis- 
ions, which,  while  not  denying  the  international  doctrine  stated,  holds 
that  the  President,  in  the  absence  of  legislation  and  treaty,  has  not  the 
power  to  enforce  that  doctrine.  Someof  these  decisions  I  cite:  *  *  • 
(Here  follow  authorities  elsewhere  cited  in  this  section.) 

"An  examination  of  the  extradition  treaties  between  the  United 
States  and  other  countries  shows  the  following  to  contain  the  sentence, 
'Neither  of  the  contracting  parties  shall  be  bound  to  deliver  up  its  own 
citizens  under  the  stipulations  of  this  treaty,"  being  the  same  as  that 
contained  in  tlie  Mexican  treaty: — Treaty  with  Austria,  December  15, 
185G;  Baden,  May  19,  1857;  liavaria,  November  18,  1851;  Belgium, 
May  1,  1871;  Belgium,  November  20,  1882;  Hanover,  May  5,  1855; 
Hayti,  July  C,  1805;  Japan,  May  20,  1875;  Mexico,  Juno  10,  1802; 
Netherlands,  July  30,   1880;   IN-ru.  July  27,  1.S7I;   Prussia  and  other 

751 


§  268.]  KXTKADITION.  [CUAP.  XL 

German  states,  Jime  1,  1853;  Spain,  February  21,  1877;  Sweden  and 
Norwa^^,  December  21,  1800. 
"Abbott's  National  Digest,  508: 

"  'The  law  of  nations  does  not  give  a  foreign  Government  a  riglit  to  demand  of  the 
Government  of  tlio  United  States  a  surrender  of  a  citizen  as  subject  of  such  foreign 
Govcrnnieut,  who  has  committed  a  crime  in  his  own  country,  and  is  afterwards  found 
within  the  limits  of  the  United  States.  Such  a  right  can  only  be  claimed  under  a 
treaty  stipulation.  (4th  Circ.  [Va.],  1835;  case  of  Jos6  Ferrcira  dos  Santos,  2  Brock., 
Marsh.,  4'J:?.     See  also  U.  S.  v.  Davis,  2  Sumn.,  482;  1  Op.,  510;  2  ibid.,  559.) 

"  '[The  international  extradition]  of  fugitives  from  justice  is  a  duty  of  comity,  not 
of  strict  right,  and  it  is  the  settled  iiolicy  of  the  United  States  not  to  make  such  extra- 
dition except  in  virtue  of  express  stipulations  to  that  effect.  (G  Op.,  85.  See  also 
1  ibid.,  IQ;  2  ibid.,  CM.)'    *    *    » 

''In  1874  Francisco  Perez,  a  Mexican,  murdered  Joseph  Alexander, 
an  American,  residing  at  Brownsville,  Tex.,  and  escaped  into  Mexico. 
It  was  tlie  purpose  of  tbis  Government  to  have  Perez  sent  back  for 
trial  on  this  side  the  frontier,  and  the  instruction  from  Mr.  Fish  to  Mr. 
Foster  states  that  though  this,  under  the  treaty,  could  not  be  expected 
as  a  matter  of  right,  and  would  not  be  asked  as  a  matter  of  favor  or 
even  accepted  as  such  with  any  understanding  that  it  would  be  recip- 
rocated by  us,  still  Mv.  Foster  was  authorized  to  apply  to  the  Mexican 
Government,  making  known  all  the  circumstances,  and  submitting 
whether  they  were  not  such  as  to  warrant  a  voluntary  surrender  of  the 
party,  if  this  could  in  any  case  be  done.  October  3,  1874,  Mr.  Foster 
reported  that  the  Mexican  Government  declined  to  surrender  Perez, 
and  Mr.  Fish, in  acknowledging  this  dispatch,  remarked  that  it  wasnot 
surprising  that  the  Mexican  Government  so  acted,  especially  as  it  had 
a  technical  right  to  refuse  the  request. 

"Alexander  Jalinsky,  a  Russian  subject,  charged  with  embezzlement 
of  money  and  securities  from  the  custom-house  at  Lardomis,  in  the 
Russian  dominions,  was  alleged  to  have  taken  refuge  in  the  United 
States.  Mr.  Evarts  states  that,  as  no  treaty  of  extradition  exists  be- 
tween the  two  Governments,  the  absence  of  any  general  provisions  of 
United  States  law  directing  and  defining  the  functions  of  the  Execu- 
tive in  respect  to  the  surrender  of  a  person  charged  with  the  commis- 
sion of  crime  in  the  territories  of  a  foreign  power,  and  alleged  to  be  a 
fugitive  from  the  justice  of  any  country  with  which  no  treaty  of  extra- 
dition has  been  concluded,  appears  to  involve  the  necessity  of  a  declen- 
sion on  the  part  of  the  United  States  to  accede  to  an  application  of  the 
character  made  by  Mr.  Shishkin.  Mr.  Evarts  adds  that  the  delay  in 
answering  Mr.  Shishkin  has  not  been  unaccompanied  with  a  hope  that, 
either  by  the  action  of  a  co-ordinate  branch  of  the  Government  or  other- 
wise, it  might  become  possible  to  treat  the  application  for  extradition 
with  a  more  favorable  consideration. 

"  Thus  it  appears  that,  by  the  opinions  of  several  Attorneys-General, 
by  the  decisions  of  our  courts,  and  by  the  ruling  of  the  Department  of 
State,  the  President  has  not,  independent  of  treaty  provision,  the  power 


CHAP.  XI.]     OEDINARILY  NO  EXTRADITION  WITHOUT  TREATY.    [§  268. 

of  extraditiDg  an  American  citizen,  and  the  only  question  to  be  consid- 
ered is  whether  the  treaty  with  Mexico  confers  that  power. 

"  By  the  treaty  with  Mexico  proclaimed  June  20,  18C2,  this  country 
places  itself  under  obligations  to  Mexico  to  surrender  to  justice  per- 
sons accused  of  enumerated  crimes  committed  within  the  jurisdiction  of 
Mexico  who  shall  be  found  within  the  territory  of  the  United  States  j 
and  further  jirovides  that  that  obligation  shall  not  extend  to  the  sur- 
render of  American  citizens.  The  treaty  confers  upon  the  President  no 
affirmative  power  to  surrender  an  American  citizen.  The  treaty  between 
the  United  States  and  Mexico  creates  an  obligation  on  the  part  of  the 
respective  Governments,  and  does  no  more,  and  where  the  obligation 
ceases  the  power  falls.  It  is  true  that  treaties  are  the  laws  of  the  land, 
but  a  statute  and  a  treaty  are  subject  to  different  modes  of  construc- 
tion. If  a  statute  by  the  first  section  should  say :  The  President  of  the 
United  States  shall  surrender  to  any  friendly  power  any  person  who 
has  committed  crime  against  the  laws  of  that  power,  but  shall  not  be 
bound  so  to  surrender  American  citizens,  it  might  be  argued,  perhaps 
correctly,  that  the  President  had  a  discretion  whether  he  would  or  would 
not  surrender  an  American  citizen.  But  a  treaty  is  a  contract,  and 
must  be  so  construed.  It  confers  upon  the  President  only  the  power 
to  perform  that  contract.  I  understand  the  treaty  with  Mexico  as 
reading  thus :  The  President  shall  be  bound  to  surrender  any  person 
guilty  of  crime,  unless  such  person  is  a  citizen  of  the  United  States. 

"  Such  being  the  construction  of  the  treaty,  and  believing  that  the 
time  to  prevent  a  violation  of  the  law  of  extradition  was  before  the 
citizens  left  the  jurisdiction  of  the  United  States,  I  telegraphed  the 
governor  of  Texas  that  an  American  citizen  could  not  legally  be  held 
under  the  treaty  for  extradition. 

"  It  would  be  a  great  evil  that  those  guilty  of  high  crime,  whether 
American  citizens  or  not,  should  go  unpunished ;  but  even  that  result 
could  not  justify  an  usuri)ation  of  power. 

"  On  further  reflection,  in  view  of  the  fact  that  fourteen  of  our  treaties 
with  other  nations  contain  provisions  identical  with  that  contained  in 
our  treaty  with  Mexico,  and  impressed  also  with  the  fact  that  the 
safety  and  peace  of  society  on  the  frontier  would  be  greatly  injured  if 
criminals,  because  citizens  of  this  country,  could  here  find  an  asylum 
and  go  unpunished,  I  concluded  that  the  question  was  one  of  too  much 
importance  to  be  settled  by  the  dictum  of  any  individual,  but  should 
receive  judicial  determination,  and  to  this  end  I  telegraphed  theoflBcers 
to  hold  the  accused  until  thej"  received  other  direction.  The  accused 
had,  however,  after  my  first  telegram,  been  discharged. 

''  I  now  propose  to  inform  the  officers  in  Texas,  who,  subject  to  the 
supervision  of  the  President,  are  authorized  to  determine  whether  a 
surrender  of  the  accused  should  be  made,  that  if  anotlicr  arrest  is  made 
and  a  case  of  guilt  is  made  out  the  President  will  not,  on  the  ground 
of  citizenship,  interfere  with  an  order  of  surrender  if  such  bo  made, 
8.  Mis.  lOL'— Y(..L.  II J.S  753 


§  268.]  EXTRADITION.  [CUAP.  XI. 

but  loquiros  that  ihe  accused  be  infonnod  that  if  he  or  they  wish  a 
hearing  beiore  the  Supreme  Court  of  the  United  States  on  habeas  cor- 
pus as  to  the  power  of  the  President  in  the  mattfer  of  extradition,  or  as 
to  the  true  construction  of  the  treaty  before  the  surrender  be  actually 
made,  every  facility  for  such  hearing  will  be  atlbrded.  Should  the  court 
hold  that  the  President  has  adiscretiouary  power  of  extraditing  citizens 
proven  guilty  of  crime,  the  evil  apprehended  will  not  be  realized,  and 
should  the  court  hold  that  the  President  has  the  power  to  extradite 
only  when  bound  by  treaty  to  do  so,  Congress  can  then,  if  it  should  bo 
its  pleasure,  by  statute  confer  the  discretionary  power. 

"The  foregoing  summary  gives  the  present  condition  and  status  of  the 
case." 

Mr.  Frelingbuyseu,  Sec.  of  State,  Report  of  Feb.  13,  1884. 

"A  long  and  almost  unbroken  course  of  decisions  has  established  it 
as  a  rule  of  executive  action  not  to  grant  the  surrender  of  fugitive 
criminals  except  in  pursuance  of  a  treatj^." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Davie,  May  29,  188G.     MSS.  Dom.  Let. 

lu  Robbin's  case  (Whart.  St.  Tr.,  392;  Bee's  Rep.,  26G),  the  extradition  was 
after  treaty,  but  before  legislation  by  Congress.  This  case,  in  its  general 
relations,  is  discussed  ivfra,  ^  271a.  See  Spear  on  Extrad.,  53;  and  see  5 
Memoirs  J.  Q.  Adams,  400,  and  1  Phill.  Int.  Law  (3d  ed.),  544. 

As  denying  the  right  to  extradite  without  treaty,  see  Santos'  case,  2  Brock., 
493.  See  also  Adriance  v.  Lagrave,  59  N.  Y.,  1 10  ;  Com.  v.  Ilawes,  13  Bush, 
Gi'7;  letters  from  Mr.  Lawrence,  15  Alb.  Law  J,,  44  ;  16  iT'irf.,  3G5;  I'J  ibid., 
327;  Revue  do  droit  int.,  x,  285;  Lawrence's  com.  sur  droit  int.,  iv,  363. 
The  question  is  considered  in  detail  in  Short's  case,  10  Serg.  &  R.,  125. 

In  a  homicide  case,  where  it  appeared  that  a  shot  had  been  fired  from 
an  American  vessel  in  the  harbor  of  a  foreign  port,  killing  a  person  on 
board  a  foreign  vessel  lying  in  the  port,  and  the  prisoner  was  acquitted 
on  account  of  want  of  jurisdiction  of  the  case,  it  was  ruled  that  it  was 
not  the  duty  of  the  court,  there  being  no  treaty  stipulations  with  the 
foreign  country,  to  send  back  the  offender  to  the  foreign  Government, 
whose  laws  he  had  violated,  that  he  might  be  tried. 
U.  S.  r.  Davis,  2  Sumn.,  482. 

Certain  British  seamen  being  charged  with  piracycommitted  on  board 
a  British  vessel,  contrary  to  acts  of  Parliament,  the  offense  not  being 
piracy  under  the  law  of  nations,  and  being  imprisoned  under  a  warrant 
issued  from  the  Secretary  of  State  at  the  request  of  the  British  minister, 
under  the  treaty  of  1842,  it  was  held  that  the  prisoners  might  be  ar- 
rested and  surrendered  without  any  special  act  of  Congress  to  carry  the 
treaty  into  effect.  It  was  further  held  that  without  legislation  as  to  the 
means  of  enforcing  the  treaty  the  prisoners  might  be  examined,  and,  if 
probably  guilty,  be  ordered  into  custody,  with  a  view  to  surrender.  It 
was  held,  also,  that  the  order  of  surrender  might  be  signed  by  the  Sec- 
retary of  State  and  issued  from  the  State  Department. 
Case  of  the  British  prisoners,  1  Woodbury  and  Minot,  6G. 
754 


CHAP.  XI.]    ORDINARILY  NO  EXTRADITION  WITHOUT  TREATY.    [§  268. 

The  restrictions  iu  article  4  and  article  5  of  the  amendments  to  the 
Constitution  of  the  United  States  do  not  apply  to  the  subject  of  extra- 
dition, as  regulated  by  convention  and  by  statute.  Nor  does  such  in 
conventiou,  construed  as  covering  the  case  of  a  crime  committed  before 
the  treaty  was  made,  a  bill  of  attainder,  or  an  ex  post  facto  law,  within  the 
meaning  of  Article  I,  section  0,  of  the  Constitution  of  the  United  States. 

Giacomo,  in  re,  12  Blatch.,  371. 

If  a  Spanish  subject  who  has  violated  the  territorial  law  of  Florida  be 
within  the  United  States,  and  a  demand  be  made  for  his  surrender,  ho 
ought  to  be  given  up  for  trial  and  punishment;  and  a  law  should  bo 
made  directing  the  mode  of  procedure. 

1  Op.,  68,  Lee,  1797. 

The  President  has  no  power  "  to  make  the  delivery  "  unless  under 
treaty  or  act  of  Congress. 

1  Op.,  509,  Wirt,  1821  ;  3  Op.,  G61,  Legar6,  1841. 

The  jewels  of  the  Princess  of  Orange  were  stolen,  and  having  been 
brought  into  this  country  in  violation  of  the  revenue  laws,  were  seized 
by  the  customs  authorities.  It  was  advised  that,  as  their  rightful  owner 
had  done  nothing  to  subject  them  to  forfeiture,  the  person  who  brought 
them  into  this  country  having  obtained  them  fraudulently,  without  her 
knowledge  and  against  her  will,  they  were  not  liable  to  condemnation, 
but  stood  on  the  same  footing  as  property  cast  upon  our  shores  by  the 
violence  of  the  winds  and  waves,  and  were  entitled  to  the  same  pro- 
tection. It  was  also  advised  that  there  being  sufQcient  evidence  (there 
was  no  other  claimant)  that  they  belonged  to  the  princess,  the  Presi- 
dent might  order  the  district  attorney  to  discontinue  the  prosecution, 
and  direct  the  marshal  having  the  jewels  in  charge  to  deliver  them 
over  to  the  minister  of  the  Netherlands. 

2  Op.,  482,  Tauey,  1831. 

As  it  is  the  settled  policy  of  the  United  States  not  to  make  such  ex- 
tradition, except  in  virtue  of  express  stipulations  to  that  eflect,  the 
United  States  ought  not  to  ask  for  extradition  in  any  case  as  an  act  of 
mere  comity. 

6  Op.,  85,  Cushiug,  1853. 

The  duty  to  extradite  is  not  to  be  inferred  from  the  "  favored  nation" 
clause  in  treaties,  relating  to  commerce  and  navigation. 

G  Op.,  148,  ibid.  See  also  1  Op.,  G8,  Wirt,  1821 ;  3  ibid.,  G81,  Legard,  1841 ;  6  ibid., 
431,  Cushiiig,  1854;  14  ibid.,  281,  Williams,  1873;  snjira,  ^  134. 

As  to  arrest  of  criminals  in  uncivilized  lands,  sco  supra,  $  17&. 

As  to  extradition  to  Great  Britain  under  treaty  of  1842,  seo  President's  message, 
transmitting  letter  from  tlie  Secretary  of  State  relative  to.  May  12,  1884. 
House  Kx,  Doc,  15G,  48th  Cong.,  1st  sess.  For  other  documents  see  report 
of  C(»mmitteo  on  Koreigii  Afl'airs.  House  Rep.  701,  4."lli  Cong.,  2d  sons.  ; 
and  Senate  Rep.  H-J,  47ili  Cong.,  1st  sess. 

AndiTSon's  case  and  proccedingh  l(er(jre  C'ouit  ol'  King's  IJciuli  in  iHKi  arc  slated 
in  Senate  Ex.  Doc.  II,  3Glh  Cong.,  2d  sess.  nrr 


§  269.]  EXTRADITION.  [CHAP.  XL 

II.  DEMAND  CONFINED  TO  TREATY  OFFENSES. 

§  2G9. 

Tlio  rule,  cxpresHio  nnim  est  cxclmio  altcrms^  applies  to  extradition 
treaties;  and  under  such  treaties  process  can  be  sustained  only  for 
enumerated  ollenses.  This,  bowever,  would  not  preclude  in  extraor- 
dinary- cases,  and  an  ai)i)eal,  not  on  the  basis  of  the  treaty  but  on  the 
ground  of  comity,  for  surrender  of  a  fugitive  charged  with  a  non-enu- 
merated oflense,  when  such  ofiense  is  one  which  would  justify  such  an 
extraordinary  measure. 

Mr.  JoflV'isou's  rea.sous,  in  instructious  of  March  22, 1792,  to  Mcssr.s.  Carmidiael 
aud  Short,  for  limiting  extraditable  offenses  to  murder,  are  given  in  1  Ara. 
St.  Pap.  (For.  Eel.),  258. 

It  is  true  that  at  one  time  a  different  view  was  held.  Thus,  in  179G, 
the  Secretary  of  State  (Mr.  Pickering)  "expresses  his  concurrence  with 
Mr.  Liston  (British  minister  at  Washington)  in  the  opinion  that  while 
the  reciprocal  delivery  of  murderers  and  forgers  is  expressly  stii)ulated 
in  the  27th  article  of  our  treaty  with  Great  Britain,  the  two  Govern- 
ments are  left  at  liberiy  to  deliver  other  oftenders  as  propriety  and 
mntual  advantage  shall  direct.  *  *  *  The  Attorney-General  lias 
just  called,  and  thinks  the  opinion  expressed  to  be  correct."  (Mr.  Pick- 
ering to  the  President,  June  3,  1790.  MSS.  Dom.  Let.)  In  a  letter 
of  same  date  to  the  governor  of  Vermont,  Mr.  Pickering  says:  "The 
reciprocal  delivery  of  murderers  and  forgers  is  positively  stipulated  by 
the  27th  article  of  the  treaty ;  the  conduct  of  the  two  Governments  with 
respect  to  other  offenders  is  left,  as  before  the  treaty,  to  their  mutual 
discretion,  but  this  discretion  will  doubtless  advise  the  delivery  of  cul- 
prits for  offenses  which  affect  the  great  interests  of  society.  The  Presi- 
dent approves  of  this  opinion  and  of  the  communication  of  it  to  your 
excellency." 

MSS.  Dom.  Let. 

The  correspondence  with  Great  Britain  in  regard  to  the  interpreta- 
tion of  article  10  of  the  treaty  of  1812  will  be  found  in  Brit,  and  For.  St. 
Pap.,  lS44-'45,  vol.  33,  892^^.  These  documents  include  the  opinion  of 
Mr.  Nelson,  Attorney-General  of  the  United  States  (4  Op.,  201),  August 
7,  1843,  elsewhere  referred  to,  in  the  case  of  Christiana  Cochran,  de- 
manded by  the  British  Government,  aud  the  proceedings  in  Britton's 
case,  in  which  the  following  opinion  was  given  by  the  Attorney  and 
Solicitor  General : 

"  1st.  The  offenses  for  which  a  party  imxy  be  apprehended  under  this 
act  are  distinctly  specified  in  the  first  section  of  it.  They  are  all  offenses 
known  and  recognized  by  the  criminal  law  of  this  country,  and  the  mag- 
istrate should  issue  his  warrant  upon  the  same  description  of  evidence 
as  he  would  require  in  case  the  crime  had  been  alleged  to  be  committed 
in  this  country. 

"  2(1.  AVe  are  of  opinion  that  x>apersor  documents  professing  to  be  or 
proved  to  be  the  original  depositions  are  not  admissible  under  the  second 
section  of  the  act,  without  the  certificate  of  the  magistrate  who  issued 
the  warrant. 

'•  3d.  We  think  they  ought  to  be  connected  with  the  warrant,  as  copies 
ought  to  be,  by  a  certificate  from  the  party  issuing  it. 

756 


CHAP.  Xl.J   DEMAND  CONFINED  TO  TREATY  OFFENSES.    [$  ^^^' 

"4th.  We  think  copies  are  not  admissible  unless  certified  to  bo  so 
under  the  hand  of  the  person  issuing  the  warrant,  and  attested,  by  the 
oath  of  the  party  producing  them,  that  they  are  true  copies. 

"oth.  There  can  be  no  doubt  that  the  words  'original  warrant,'  in  the 
second  section,  mean  the  warrant  issued  in  America ;  but,  in  order  to 
justify  the  apprehension  of  an  offender  under  this  act,  it  does  not  ap- 
pear to  us  to  be  necessary  that  any  warrant,  by  the  authorities  in 
America,  should  be  produced  here;  such  production  is  not  required  by 
the  first  section  of  the  act,  which  gives  the  justices  here  the  power  to 
apprehend.  The  second  section  applies  merely  to  the  evidence  of  the , 
guilt ;  and  if  the  depositions  are  oflered  in  evidence  before  a  magistrate 
here,  then  the  certificate  of  the  magistrate  abroad,  who  took  the  depo- 
sitions and  issued  his  warrant  upon  them,  becomes  necessary  to  render 
them  admissible. 

"  Gth.  We  think  a  magistrate  may  act  upon  the  depositions,  &c.,  if 
they  would  constitute  an  offense  here,  without  proof  that  the  offense 
charged  is  an  offense  in  the  foreign  country. 

"  7th.  We  think  that  the  depositions  may  be  received  in  evidence  be- 
fore the  apprehension  of  the  party. 

"Frederick  Pollock. 

"W.    W.   FOLLETT." 

"Temple,  November  24, 1843. 

In  the  Brit,  and  For.  St.  Pap.  for  1844-'45,  vol.  33,  893,  will  be  found  further 
correspondence  between  the  United  States  and  Great  Britain  on  the  subject 
of  extradition. 

As  to  meaning  of  "infamous  offenses  "  in  treaty  of  1869,  see  supra,  $  152. 

The  convention  for  extradition  between  the  United  States  and  Bavaria 
of  1853  was  not  abrogated  by  the  operation  of  the  constitution  of  the 
German  Empire,  adopted  in  1871,  as  affecting  the  further  independent 
existence  of  Bavaria. 

Thomas,  in  re,  12  Blatch.,  370,     Supra,  ^  136/. 

Extradition  cannot  be  demanded  of  France  by  the  United  States  in 
the  case  of  a  breach  of  trust  in  the  State  of  California  made  grand  lar- 
ceny by  the  laws  of  that  State. 
7  Op.,  643,  Gushing,  1856. 

Although  robbery  on  the  lakes  is  piracy  within  the  meaning  of  the 
treaty  with  Great  Britain  of  1842,  yet  where  the  parties  engaged  in 
certain  outrages  on  Lake  Erie  were  guilty  of  robbery  and  assault  with 
intent  to  commit  murder,  the  Secretary  of  State  was  advised,  in  view 
of  the  disputed  question  of  piracy  on  the  lakes,  that  their  extradition 
should  be  demanded  at  the  hands  of  the  Canadian  authorities  for  the 
latter  offenses. 

11  Op.,  114,  Bales,  1804. 

A  public  officer  of  the  United  States  who  embezzles  moneys  of  the 
United  States  intrusted  to  his  care,  and  escapes  from  justice  to  the 
territory  of  France,  is  liable,  under  the  extradition  treaty  with  Franco 
of  1843,  to  be  returned  to  this  country  for  trial. 
1-^  0|i.,  3'J(i,  SlaiilKMV,  1H07. 

757 


§270.]  EXTRADITION.  [CIIAP.  XI. 

"On  tLo  24th  of  April  [1792],  the  Secretary  of  State  forwarded  to 
Messrs.  Carmicbael  and  Short,  to  be  submitted  to  the  Spanish  Court, 
the  project  of  a  convention  for  the  mutual  rendition  of  iugitives  from 
justice  between  the  United  States  and  the  Spanish  territories  border- 
ing on  them.  The  phin  had  been  dratted  by  the  Secretary,  and  received 
the  approval  of  the  President.  It  provided  for  the  giving  up  of  persons 
who  had  committed  willful  murder,  not  of  the  nature  of  treason;  for  the 
recovery  of  debt  from  fugitives,  in  the  courts  of  justice  established  in 
the  States  or  provinces  where  the  fugitive  was  found;  for  the  recovery, 
in  like  manner,  from  the  fugitive  or  his  representatives,  of  property  or 
its  value,  carried  away,  or  of  damages  sustained  by  forgery.  But  in  no 
case  was  the  person  of  the  defendant  to  be  imprisoned  for  debt.  The 
draft  was  accomi)anied  by  a  paper  assigning  heads  of  reasons  both  for 
its  provisions  and  seeming  omission.  The  exile  necessarily-  incurred  by 
a  fugitive  was  regarded  as  a  sufticient  punishment  for  most  ofienses. 
A  single  extract  is  given  to  exhibit  the  spirit  of  the  paper : 

'■'■'■  Treason. — This,  when  real,  merits  the  highest  punishment.  But 
most  codes  extend  their  definition  of  treason  to  acts  not  really  against 
one's  country.  They  do  not  distinguish  between  acts  against  the  Gov- 
ernment, and  acts  against  the  oppresnions  of  the  Government,  the  latter 
are  virtues,  yet  they  have  furnished  more  victims  to  the  executioner 
than  the  former,  because  real  treasons  are  rare,  oppressions  frequent. 
The  unsuccessful  strugglers  against  tyranny  have  been  the  chief  martyrs 
of  treason  laws  in  all  countries. 

"'Beformation  of  Government  with  our  neighbors,  being  as  much 
wanted  now  as  reformation  of  religion  is,  or  ever  was  anywhere,  wo 
should  not  wish,  then,  to  give  up  to  the  executioner,  the  patriot  who 
fails  and  flees  to  us.  Treasons,  then,  taking  the  simulated  with  the 
real,  are  sufficiently  punished  by  exile.'" 

2  Kandall's  Life  of  Jefferson,  53. 

III.  TRIAL  TO  BE  ONLY  FOR  OFFENSES  ENUMERATED  IN  TREATY. 

§  270. 

The  general  rule,  embodied  in  several  treaties,  and  sustainable  as  a 
principle  of  international  law,  is  that  when  a  fugitive  is  delivered  on  a 
specific  charge,  he  cannot  be  tried  for  an  offense  which  is  not  enumerated 
as  among  those  for  which  extradition  would  have  been  granted,  or  for 
which  (as  the  rule  is  sometimes  stated)  extradition  would  not  have  been 
granted  if  asked. 

Lawrence's  case  was  as  follows  : 

Lawrence  was  surrendered  in  1875  on  the  charge  of  forgerj',  the  de- 
mand being  made  on  March  4,  1875.  When  arraigned  in  Kew  York  on 
several  indictments,  charging  separate  forgeries,  he  pleaded  specially 
that  he  had  been  extradited  for  a  i^articular  forgery,  and  that  he  could 
not  be  tried  for  any  other  forgery.  The  United  States  filed  a  rejoinder, 
stating,  among  other  things,  "  that  by  the  laws  of  Great  Britain  and 
of  the  United  States,  as  well  as  by  the  practice  of  both  parties  to  the 
treaty,  no  limitation  exists  as  to  the  number  and  character  of  the  of- 
fenses for  which  a  partv  extradited  may  be  tried."  It  was  held  by 
Judge  Benedict,  in  March,  187G  (U.  S.  v.  Lawrence.  13  Blatch.,  295), 
that  the  i)lea  was  no  bar.  Mr.  Fish,  Secretary  of  State,  in  repl^^  to 
Lord  Derby's  statement  that  the  Government  of  the  United  States  in- 
tended "to  try  Lawrence  for  other  than  the  extradition  crime,"  said 

758 


CHAP.  XI.  LIMITATION    AS    Tu    TRIAL.  [§270 

"  that  the  Government  of  the  Uuited  States  had  ueveu  reached  any 
such  conclusion,  nor  formed  any  such  intern  ion."  (Mr.  Fish  to  Mr. 
Hoffman,  For.  Eel.,  187G,  213.)  According  to  a  statement  by  Mr. 
Bliss,  district  attorney  at  the  time,  "care  was  taken  that  Lawrence 
should  not  be  arraigned  upon,  or  asked  to  plead  to,  any  charge,  except 
the  indictment  for  the  forgery"  on  which  the  extradition  was  granted. 
Lawrence  ultimately  pleaded  guilty  to  this  charge.  (See  Spear  on  Ex- 
tradition, 120.)  But  compare  qualifying  statements  in  Lalor's  Cyclo- 
pedia,  &c.,  art.  Extradition. 

The  following  documents  relate  to  this  and  kindred  cases  and  tho 
principles  they  involve : 

"A  conversation  occurred  on  the  17th  instant,  between  Sir  Edward 
Thornton  and  myself,  in  reference  to  the  course  which  might  be  adopted 
by  the  British  Government  on  a  demand  being  preferred  for  the  extra- 
dition of  Winslow  on  the  charge  of  forgery. 

"  Sir  Edward  suggested  that  if  his  surrender  were  requested  it  might 
be  refused,  unless  a  stipulation  was  entered  into  that  the  fugitive  should 
not  be  tried  upon  any  offense  other  than  that  for  which  he  was  extra- 
dited. 

"  Whether  this  course,  if  adopted,  grows  out  of  the  proceedings  in 
the  Lawrence  case,  or  from  a  desire  to  make  the  extradition  treaty  be- 
tween the  United  States  and  Great  Britain  subject  to  the  provisions  of 
the  British  extradition  act  of  August  9,  1870,  I  cannot  say. 

"  You  will  reinember  that  this  act,  in  section  3,  under  the  head  of 
'Eestrictions  on  surrenders  of  criminals,'  provides  that  no  criminal  shall 
be  surrendered  unless  provision  is  made  by  the  law  of  the  foreign  state, 
or  by  arrangement,  that  the  fugitive  shall  not  be  tried  for  any  offense 
'other  than  the  extradition  crime  i)roved  by  the  facts  on  which  the 
surrender  is  grounded.' 

"  If  the  course  adverted  to  be  caused  by  the  Lawrence  case,  it  may 
be  well  to  say  that  it  is  believed  that  Lawrence  has  not,  up  to  this  time.^ 
been  arraigned  for  any  other  than  the  extradition  offense,  and  that  no 
representation  has  been  made  to  this  Government  on  the  question. 

"  If  such  a  course  is  taken  for  any  other  reason,  it  may  be  said  that 
Great  Britain  has  on  more  than  one  occasion  tried  surrendered  crimi- 
nals on  offenses  other  than  those  for  which  they  were  extradited,  and 
such  trials  afford  a  practical  construction  of  the  scope  of  the  treaty  and 
of  the  power  and  rights  of  either  Government  as  understood  and  api)lied 
by  Great  Britain  for  a  period  of  nearly  thirty  years  after  the  ratification 
thereof,  and  I  cannot  imagine  that  it  will  be  claimed  by  (}reat  Britain 
that  either  i>arty  to  a  treaty  may  at  will,  and  by  its  own  municipal  leg 
islation,  limit  or  change  the  rights  which  have  been  conceded  to  the 
other  by  treaty,  and  have  been  ])ractical]y^  admitted  for  such  length  of 
time. 

"I  would  also  call  your  attention  to  the  twenty-seventh  section  of 
the  act  of  1870  (cli.  B'l,  .3.3,  31,  Vict.),  repealing  former  acts  under  which 
extradition  liad  thereto  Co  re  been  made.     This  section  expressly  excepts 

759 


§  270.]  I'^XTRADITION.  fcTrAP.  XT. 

every tliiiiy:  contained  in  tlie  act  inconsistent  with  tlie  treaties  leleriecl 
to  in  the  repealed  acts,  among  which  is  the  treaty  with  the  United 
States.  It  seems  to  have  been  clearly  the  intent  of  Parliament  not  to 
apply  to  that  treaty  any  of  the  provisions  of  the  act  inconsistent  with 
the  treaty,  as  it  had  existed  and  been  enforced  for  nearly  thirty  years. 
"  While  I  hope  that  no  such  demand  will  be  made  as  intimated,  you 
will  object  to  any  such  stipulation  being  asked,  and,  should  it  be  in- 
sisted upon,  you  will  decline  to  give  it,  and,  if  necessary,  telegraph  to 
the  Department  for  further  instructions." 

Mr.  FisL,  Sec.  of  State,  to  Mr.  Scbenck,  Feb.  21,  1876.     MSS.  Inst.,  Gr.  Brit. ; 
For.  Eel.,  187G. 

"Keferringto  previous  correspondence  in  reference  to  the  extradi- 
tion of  Winslow,  in  custody  in  London,  I  have  now  to  acknowledge 
the  receipt  of  your  No.  39,  under  date  of  March  10,  inclosing  a  note 
addressed  to  you  by  Lord  Derby,  of  JMarch  8,  and  your  reply  of  the 
same  day. 

"  With  General  Schenck's  No.  884,  was  inclosed  a  note  from  Lord 
Derby,  dated  February  29,  in  which  it  was  stated  that  Uer  Majesty's  sec- 
retary^ of  state  for  the  home  dei^artment  had  drawn  attention  to  subsec- 
tion two  of  the  third  section  of  the  British  extradition  act  of  1870,  and 
feared  that  the  claim  by  this  Government  of  the  right  to  try  Lawrence 
(who  had  been  recently  surrendered)  for  crimes  other  than  that  for 
which  he  had  been  extradited  amounts  to  a  denial  that  any  such  law 
as  is  referred  to  in  the  British  act  exists,  and  the  disclaimer  of  this 
Government  of  the  existence  of  any  imjilied  understanding  in  respect 
to  trials  for  crimes  other  than  extradition  crimes,  together  with  the  in- 
terpretation put  upon  the  act  of  Congress  of  August  12, 1842  (which  is 
doubtless  an  error  for  1848),  j)reclude  any  longer  the  belief  in  the  exist- 
ence of  an  eflectivc  arrangement  which  Her  Majesty's  Government  had 
previously  supposed  to  be  practically  in  force,  and  it  was  added  that  the 
secretar^^  of  the  home  department  was  compelled  to  state  that  if  he  were 
correct  in  considering  that  no  such  law  exists,  he  would  have  no  power, 
in  the  absence  of  an  arrangement,  to  order  the  extradition  of  Winslow, 
even  although  proper  proceedings  had  been  taken  for  that  purpose. 

"Lord  Derby  called  General  Schenck's  attention  to  the  intimation 
which  he  had  received  from  the  home  department,  and  requested  that 
the  matter  be  brought  to  the  knowledge  of  this  Government. 

'*It  is  to  be  remarked,  however,  that  in  this  note  the  foreign  ofl&ce,  as 
distinguished  from  the  home  office,  expressed  no  opinion  on  the  ques- 
tion involved,  but  confined  itself  to  requesting  that  the  views  of  the 
home  office  might  be  communicated  to  this  Government. 

"A  few  days  later,  however,  on  the  8th  of  March,  Lord  Derby  assumes 

the  more  advanced  position  previously  occupied  only  by  the  home  de- 

l)artment,  and  writes  as  follows:  'Jler  Majesty's  Government  do  not 

feel  themselves  justified  in  authorizing  the  surrender  of  Winslow  until 

7G0 


CrtAP.  Xl.J  LIMITATION    AS    TO    TRIAL.  [§  270. 

tLey  shall  have  received  the  assurance  of  your  Governuieut  that  this 
person  shall  not,  until  he  has  been  restored,  or  had  an  opportunity  of 
returning  to  Her  Majesty's  dominions,  be  detained  or  tried  in  the  United 
States  for  any  offense  committed  prior  to  his  surrender  other  than  the 
extradition  crimes  proved  by  the  facts  on  which  the  surrender  would 
be  grounded,'  and  requesting  that  this  decision  be  communicated  to 
this  Government. 

"To  his  note  you  made  reply  under  date  March  8,  referring  to  the 
general  practice  for  many  years  under  the  treaty,  and  calling  attention 
to  the  construction  given  to  the  twenty-seventh  section  of  the  act  of 
1870  in  the  case  of  Bouvier. 

"No  further  correspondence  has  reached  this  Government,  and  the 
matter  rests  upon  this  note  of  Lord  Derby  and  your  reply. 

"The  reasons  given  by  Lord  Derby  for  the  course  intimated  in  his 
note  arise,  as  he  states,  from  what  has  taken  place  in  this  country  in 
the  Lawrence  case,  and  the  positive  terms  of  section  three,  subsection 
two,  of  the  British  extradition  act  of  1870. 

"  Moreover,  it  has  been  stated  that  the  home  office  had  even  gone  fur- 
ther, and  expressed  the  opinion  that,  not  only  had  some  implied  under- 
standing been  reached  as  to  the  particular  crime  for  which  Lawrence 
should  be  tried,  but  that  it  would  be  in  violation  of  the  law  of  the  Uni- 
ted States,  and  of  the  general  laws  of  extradition  of  all  countries,  to  try 
any  prisoner  for  any  other  crime  than  the  particular  extradition  offense 
for  which  he  had  been  surrendered. 

"  'With  regard  to  any  such  understanding,  either  expressed  or  implied 
by  any  authorized  declaration  or  engagement  of  this  Government,  no 
evidence  is  adduced ;  none  can  be  adduced.  This  Government  asked  the 
surrender  of  Lawrence,  precisely  as  it  has  asked  the  surrender  of  all 
other  fugitives  who  have  been  delivered  by  Great  Britain  under  the 
treaty-  of  1842,  comi)lying  on  its  part  with  the  requirements  of  the  treaty ; 
and  neither  by  expression  nor  by  implication  entering  into  anj- '  arrange- 
ment,' but  simply  requiring  the  fugitive  to  be  '  delivered  up  to  justice.' 
It  furnished  such  evidence  of  criminality  as,  according  to  the  laws  of 
Great  Britain  where  the  fugitive  was  found,  would  have  justified  his 
apprehension  and  commitment  for  trial  if  the  crime  or  offense  liad  been 
there  committed. 

"  Great  Britain  recognized  the  compliance  by  this  Government  with 
all  that  the  treaty  required,  and  delivered  the  fugitive  up  to  justice. 

"  The  allusion  made  by  the  home  office  to  the  case  of  Lawrence  needs 
possibl}'  a  passing  remark. 

"  Charles  L.  Lawrence  is  charged  witii  a  series  of  forgeries  whereby 
the  Government  of  the  United  States  claims  to  have  been  defrauded  to 
an  amount  not  far  short  of  two  millions  of  dollars  on  custom-house  en- 
tries, lie  is  supposed  to  have  numerous  and  infliuMilial  confederates, 
both  in  lliis  coun<ry  and  in  T/tij^'liiiMl,  who  are   susj)ected  nf  having 

701 


§  270.]  i:\TKADiTioN.  [chap.  XI. 

shared  in  the  spoils  lesultiiij?  IVom  these  alleged  frauds  upon  this  Gov- 
ernment. 

"A  large  number  of  indictments  have  been  found  against  Lawrence, 
and  proceedings  either  civil  or  criminal  are  either  pending  or  imminent 
against  supposed  accomplices.  It  is  supposed  that  prosecution  of  these 
cases  might  possibly  disclose  names  on  either  side  of  the  Atlantic,  in 
connection  with  the  alleged  frauds,  not  yet  brought  before  the  public. 

"In  the  spring  of  1875  Lawrence  fled  and  escaped  to  Europe,  and  was 
arrested,  under  the  assumed  name  of  Gordon,  at  Queenstown,  on  a 
requisition  for  his  surrender  under  the  treaty.  There  were  proved  (as 
I  am  informed)  before  Sir  Thomas  Henry,  in  London,  twelve  or  thirteen 
distinct  charges  of  forger^',  each  on  papers  connected  with  a  different 
invoice  of  goods.  The  representatives  of  this  Government  supposed  the 
extradition  was  made  on  all  the  charges;  but  the  letter  or  report  of  Sir 
Thomas  Henry  to  the  British  home  ofiQce  led  to  the  issue  of  a  warrant  of 
surrender  of  Lawrence  on  the  single  charge  of  forging  a  bond  and  afli- 
davit,  on  which  warrant  the  keeper  of  the  jail  delivered  Lawrence  to 
the  agent  appointed  by  the  President  to  receive  him;  the  terms  of  the 
warrant  were  not  known  to  any  agent  or  officer  of  this  Government  (as 
is  represented  to  me)  until  long  after  Lawrence's  return  to  the  United 
States.  His  counsel  and  friends  appear  to  have  been  apprised  of  the 
fact  that,  although  proof  was  presented  on  some  twelve  or  thirteen 
charges  of  forger^',  the  warrant  of  surrender  seems  to  be  confined  to  the 
forging  a  bond  and  affidavit.  Up  to  this  date  Lawrence  has  been  ar- 
raigned only  upon  one  indictment,  based  on  the  forgery  of  the  bond  and 
affidavit  mentioned  in  Sir  Thomas  Henry's  report  to  the  home  office, 
and  he  has  not  been  arraigned  for  any  offense  other  than  the  extradi- 
tion crimes  proved  by  the  facts  in  evidence  before  Sir  Thomas  Henry, 
and  on  which  his  surrender  was  based. 

"Although  not  arraigned  on  any  other  indictment  than  for  the  forgery 
for  which  he  was  extradited,  the  British  home  office  has  raised  theques- 
tion  that  he  may  possibly  be  tried  upon  other  charges  and  for  other 
crimes. 

"It  seems,  therefore,  that  the  home  office  of  Great  Britain  undertakes 
to  decide  what  is  the  law  of  the  United  States,  as  well  as  of  Great  Brit- 
ain, and  assumes  that  the  law  of  the  United  States,  as  well  as  general 
law  of  extradition  and  the  extradition  act  of  Great  Britain,  prevents  the 
trial  of  a  criminal  surrendered  under  the  treaty  of  1842  for  any  offense 
other  than  the  particular  offense  for  which  he  was  extradited;  and  the 
position  which  it  takes  involves  the  assumption  that,  in  demanding  an 
extradition  under  the  treaty,  the  United  States  is  bound  by  the  provis- 
ions of  the  act  of  1870,  whether  in  conflict  with  the  treaty  or  not,  and  it 
claims  to  have  'supposed'  that  an  'effective  arrangement  was  in  force' 
that  no  criminal  so  surrendered  should  be  tried  for  any  other  than  the 
particular  extradition  offense;  on  tlic  faith  of  which  arrangement  it  is 
claimed  that  surrenders  have  heretofore  been  made,  and  without  which 
762 


CHAP.  XI.]  LIMITATION    AS    TO    TKIAL.  [§  270. 

it  is  uow  said  that  a  surrender  would  not  be  possible  under  an  English 
act:  but,  as  already  said,  nothing  is  adduced  in  support  of  the  belief  of 
the  existence  of  such  supposed  arrangement. 

"  These  positions  are  so  difterent  from  the  understanding  of  this  Gov- 
ernment, and  so  opposed  to  the  views  which  it  was  supposed  were  en- 
tertained by  Great  Britain,  and  which  have  been  recorded  in  parlia- 
mentary papers,  which  have  been  asserted  in  diplomatic  correspond- 
ence, and  been  recognized  in  judicial  decisions  in  that  as  in  this  country, 
and  set  forth  by  writers  on  extradition  law,  that  I  learn  from  Lord  Derby's 
note,  with  surprise  equal  to  my  regret,  that  they  appear  to  be  supported 
by  the  foreign  oflBce. 

"The  act  of  August  12,  1848,  reproduced  in  the  Revised  Statutes  (§§ 
5270  to  527G),  referred  to  in  the  correspondence,  does  not  affect  or  limit 
the  rights  of  the  two  Governments  on  the  question. 

"This  act  is  simply  a  general  act  for  carrying  into  effect  treaties 
of  extradition.  It  iirovides  the  machinery,  and  prescribes  the  general 
mode  of  procedure,  but  does  not  assume  to  determine  the  rights  of  the 
United  States,  or  of  any  other  state,  which  are  governed  wholly  by  the 
particular  provisions  of  the  several  treaties,  nor  to  limit  or  construe 
any  particular  treaty. 

"  In  somefew  treaties  between  tlie  United  States  and  foreign  countries 
provisions  exist  that  the  criminal  shall  not  be  tried  for  offenses  com- 
mitted prior  to  extradition,  other  than  the  extradition  crime,  and  in 
others  no  such  provision  is  included. 

"Again,  under  some  treaties,  the  citizens  or  subjects  of  the  contracting 
powers  are  reciprocally  exempt  from  being  surrendered,  while  others 
contain  no  such  exception.  The  United  States  act  of  1848  is  equally 
applicable  to  all  these  differing  treaties.  If  the  surrendered  fugitive  is 
to  find  immunity  from  trial  for  other  than  the  offense  named  in  the  war- 
rant of  extradition,  he  must  find  such  immunity  guaranteed  to  him  by 
the  terms  of  the  treaty,  not  in  the  act  of  Congress.  The  treaties  which 
contain  the  immunity  from  trial  for  other  offenses  have  been  celebrated 
since  the  date  of  the  act  of  1848. 

"At  that  date  the  United  States  had  treaties  of  extradition  only  with 
Great  Britain  and  with  France,  neither  of  which  contained  the  limita- 
tion referred  to. 

"  The  terms  of  the  respective  treaties  alone  define  or  can  limit  the 
rights  of  the  contracting  parties. 

"  The  construction  of  the  treaty  between  the  United  States  and 
Great  Britain,  by  the  two  Governments,  and  their  practice  in  its  en- 
forcement, for  many  years  were  in  entire  harmony.  In  each  country 
surrendered  fugitives  Lave  been  tried  for  other  offenses  than  those  for 
which  they  had  been  delivered;  the  rule  having  been  that,  where  the 
criminal  was  reclaimed  in  good  faith,  and  the  proceeding  wass  not  an 
excuse  or  ijreteiisc,  to  bring  him  within  the  juriisdiction  of  the  court,  it 
wa.s  no  violation  of  tlx;  treaty,  or  of  good  f;iith,  to  jjroceed  against  him 

7g:j 


§  270.]  KXTtlADITION.  [CIIAP.  Xt. 

ou  other  charges  than  the  particuhir  oue  ou  which  he  had  bceu  siir- 
rcudered.  The  judicial  decisious  of  both  coimtries  atllrm  this  rule.  It 
was  so  hehl  in  a  case  of  interstate  extradition  by  Judge  Nelson,  iu 
Williams  v.  Bacon,  10  Wend.,  G3C,  and  the  same  principle  was  laid 
down  by  the  court  of  appeals  of  Few  York,  in  a  late  case  of  Adrianco 
V.  Lagrave,  who  had  been  delivered  up  under  the  treaty  with  France. 
In  United  States  v.  Caldwell  (8  Blatch.  C.  C,  131),  Caldwell,  after  ex- 
tradition from  Canada  for  forgery  in  1871,  was  indicted  for  bribing  an 
officer  ;  and  the  plea  was  entered  that  the  prisoner  was  brought  within 
the  jurisdiction  of  the  court  upon  a  charge  of  forgery,  under  the  treaty, 
and  that  the  offense  specified  in  the  indictment  was  not  mentioned  in 
the  treaty.  A  demurrer  being  interposed,  the  court  decided  the  pris- 
oner had  been  extradited  in  good  faith,  charged  with  the  commission 
of  a  crime,  and  must  be  tried. 

"  In  the  case  of  Burley,  extradited  from  Canada  on  a  charge  of  rob- 
bery, the  prisoner  was  tried  on  assault  with  intent  to  kill. 

"  In  the  case  of  Heilbronn,  who  was  extradited  from  this  country  for 
forgery,  and  tried  in  Great  Britain  for  larceny,  the  facts,  as  stated  by 
the  solicitor-general  of  Great  Britain,  who  had  charge  of  the  proceed- 
ings, and  who  was  examined  before  the  late  British  commission  on  the 
extradition  question,  were,  that  the  prisoner  being  extradited  for  for- 
gery, was  acquitted,  and  was  thereupon  tried  and  convicted  for  larceny, 
an  offense  for  which  he  would  not  have  been  surrendered,  not  being 
enumerated  in  the  list  of  crimes  mentioned  in  the  treaty. 

"  In  Canada  there  is  the  same  current  of  authority. 

"  In  the  case  of  Von  Earnam  (Upper  Canada  Reports,  4  C,  p.  288)  the 
prisoner  was  surrendered  by  the  United  States  to  Canada  upon  the 
charge  of  forgery,  and  application  was  made  for  release  on  bail  on  the 
ground  that  the  offense  was,  at  most,  the  obtaining  of  money  under 
false  pretenses  and  not  within  the  treaty.  Macauley,  C.  J.,  said,  in  de- 
nying the  motion,  that  he  was  disj^osed  to  regard  the  offense  as  forgery, 
but  even  if  the  offense  were  only  false  pretenses,  after  '  being  in  cus- 
tody he  is  liable  to  be  prosecuted  for  any  offense  which  the  facts  may 
support.' 

"  In  Paxtou's  case  (10  Lower  Canada  Jurist,  212;  11,  352)  the  prisoner 
was  charged  with  uttering  a  forged  promissory  note.  He  pleaded  that 
he  had  been  extradited  upon  the  charge  of  forgery,  and  could  not  bo 
tried  for  uttering  forged  paper,  or  for  any  other  than  the  extradition 
offense.  The  court  decided  that  the  trial  should  i^rocted.  The  prisoner 
thereupon  protested  against  being  called  upon  to  plead  to  any  other 
charge  than  that  for  which  he  was  extradited,  but  he  was  tried,  found 
guilty,  and  the  conviction  affirmed  on  appeal. 

"  In  addition  to  the  foregoing.  Judge  Benedict,  in  his  opinion  in  Law- 
rence's case,  delivered  within  a  few  days  past,  entirely  coincides  in  these 
views,  and  the  Solicitor-General  of  the  United  States,  in  his  opinion  in 
Lawrence's  case,  dated  July  16, 1876,  reaches  the  same  conclusions. 
704 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  270. 

"An  examination  of  the  report  of  the  select  committee  on  extradi- 
tion of  the  House  of  Commons,  which  sat  in  1868,  under  whose  super- 
intendence the  extradition  law  of  1870  was  framed,  and  which  was 
composed  of  some  of  the  most  distinguished  public  men  of  Great  Brit- 
ain, among  whom  were  the  solicitor-general,  Mr.  Mill,  Mr.  Forstcr,  Sir 
Eobert  Collier,  and  Mr.  Bouverie,  shows  that  the  law  of  the  United 
States,  and  the  practice'  in  regard  to  extradition  were  perfectly  well 
understood,  aud  they  are  distinctly  referred  to  several  occasions. 

"  Mr.  Hammond,  now  Lord  Hammond,  for  many  years  under  secre- 
tary of  state,  in  speaking  of  Burley's  case,  stated,  that  as  it  was  sug- 
gested that  the  i)risoner,  who  had  been  surrendered  on  a  charge  of 
robbery,  was  about  to  be  tried  for  piracy,  the  matter  had  been  referred 
to  the  law-ofiBcers  of  the  Crown,  and  that  it  was  held  that  if  the  United 
States  put  him  honafide  on  his  trial  for  the  offense  for  which  he  was 
extradited,  it  would  be  difficult  to  question  their  right  to  try  him  for 
l)iracy,  or  any  other  offense  of  which  he  might  be  accused,  whether 
such  offense  was  or  was  not  a  ground  of  extradition,  or  even  within 
the  treaty ;  and  added,  '  We  admit  in  this  country  that  if  a  man  is 
honafide  tried  for  an  offense  for  which  he  was  given  up,  there  is  noth- 
ing to  prevent  his  being  subsequently  tried  for  another  offense,  either 
antecedently  committed  or  not.'     (Answer  103G.) 

"  Mr.  Mullens,  an  eminent  member  of  the  bar,  who  was  counsel  in 
the  Lawrence  case,  in  reply  to  a  question  of  Sir  Eobert  Collier,  said 
that,  in  his  opinion,  a  surrendered  criminal  ought  not  to  be  tried  for  an 
offense  other  than  the  extradition  offense  arising  from  the  same  facts; 
and  Mr.  Forster  (question  121-4),  considering  the  propriety  of  the  pro- 
posed stipulation,  that  a  person  should  be  tried  for  no  offense  other 
than  the  extradition  offense,  said  : 

"  'The  Americans  do  not  make  that  stipulation,  or  else  you  would  not  have  been 
able  to  try  Heilbronn  for  another  otfense.'  To  -which  Mr.  Mullens  responded:  'No; 
there  is  no  stipulation  of  that  kind  in  the  case  of  America.' 

"  Mr.  Mill  thereupon  said  (question  121G)  : 

"  'As  I  understand  it,  the  treaty  with  America  would  not  prevent  our  trying  a  man 
for  a  different  offense  from  that  for  which  ho  had  been  given  up.'  To  which  Mr.  Mul- 
lens replied  :  '  It  would  not;  there  is  no  stipulation  that  ho  shall  not  be  tried  for  any 
other  offense.'  Thou  follows  question  1217,  '  Would  you  wish  to  extend  that  state  of 
things  to  other  countries  T'  and  the  rejdy,  '  With  regard  to  America  I  have  never  found 
any  diflSculty  about  it,'  etc. 

"  So  far  as  can  be  ascertained  tiiere  was  absolutely  no  dissent  at  any 
time  from  these  views  as  to  the  hiw  ami  practice  under  the  treaty,  and 
the  only  question  seemed  to  be  whether  it  was  wise  to  attempt  to 
ciiangc  them. 

"Mr.  Clark  (an  eminent  British  authority),  in  his  Treatise  on  Iv\tr;i(li- 
tion,  says: 

"  'It  is  <iuite  clear  lliat  neither  the  treaty  nor  tlie  law  of  \\\r  I'liilcd  Slates  contaiuH 
the  provJHionHof  the  extradition  act  of  1870.' 

705 


§  270.]  EXTRADITION.  [CHAP.  XI. 

"  It  would  appear,  tberefore,  bj-  the  judicial  decisions,  by  the  practice 
of  both  Governments,  and  by  the  understanding  of  the  persons  most 
familiar  with  proceedings  in  such  cases,  and  the  most  competent  to 
judge,  that  where  a  criminal  has  been  in  good  faith  extradited  for  an 
offense  within  the  treaty,  there  is  no  agreement,  express  or  implied, 
that  he  may  not  also  be  tried  for  another  offense  of  which  he  is  charged, 
although  not  an  extradition  offense.  lie  is,  in  fact  (in  accordance  with 
the  language  of  the  treaty),  'delivered  up  to  justice;'  and  in  the  ab- 
sence of  any  limitation  by  treaty,  to  "justice"  generally;  each  indepen- 
dent State  being  the  judge  of  its  own  administration  of  justice.  Surely, 
Great  Britain  will  not  allow  the  legislature  of  another  State  to  prescribe 
or  to  limit  the  cases,  or  the  manner  in  which  justice  is  to  be  adminis- 
tered in  her  courts,  and  she  will  not  expect  the  United  States  to  be  less 
tenacious  of  its  independence  in  this  regard. 

"Now,  for  the  first  time  since  the  signing  of  the  treaty  of  1842,  Great 
Britain  raises  the  question  of  her  right  to  demand  from  the  United 
States,  as  a  condition  of  the  execution  by  Great  Britain  of  her  engage- 
ment to  surrender  a  fugitive  criminal  charged  with  a  series  of  stupen- 
dous forgeries,  a  stipulation  or  agreement  not  provided  for  in  the  treaty, 
but  asked  on  the  ground  that  an  act  of  Parliament,  passed  some  twenty- 
eight  years  after  the  treaty  had  been  in  force,  prescribes  it  as  one  of  the 
rules  or  conditions  which  should  apply  to  arrangements  for  extradition, 
when  made  with  a  foreign  state. 

"  This  involves  the  question  whether  one  of  the  parties  to  a  treaty  can 
change  and  alter  its  terms  or  construction  or  attach  new  conditions  to 
its  execution  without  the  assent  of  the  other — whether  an  act  of  the 
Parliament  of  Great  Britain,  passed  in  the  year  1870,  can  change  the 
spirit  or  terms  of  a  treaty  with  the  United  States  of  nearly  thirty  years' 
anterior  date,  or  can  attach  a  new  condition,  to  be  demanded  of  the 
United  States  before  compliance  by  Her  Majesty's  Government  with  the 
terms  of  the  treaty,  as  they  have  been  shown  to  have  been  uniformly 
understood  and  executed  by  both  Governments  for  the  third  of  a  cen- 
tury. 

"As  this  Government  does  not  recognize  any  efficacy  in  a  British  stat- 
ute to  alter  or  modify  or  to  attach  new  conditions  to  the  executory  parts 
of  a  previously  existing  treaty  between  the  United  States  and  Great 
Britain,  I  do  not  feel  called  upon  to  examine  particularly  the  provision 
of  the  law  of  1870.  But  inasmuch  as  Great  Britain  seeks  to  impose  the 
provisions  of  that  act  upon  the  United  States  in  the  execution  of  a  treaty 
of  many  years'  anterior  date,  I  do  not  fail  to  observe  that,  while  by  the 
act  Great  Britain  assumes  to  require  that  no  surrendered  fugitive  shall 
be  tried  in  the  country  which  demands  his  extradition  for  'any  offense 
other  than  the  extradition  crime'  (in  the  singular),  proved  by  the  facts 
on  which  the  surrender  is  grounded,  she  reserves  to  herself  the  right  to 
try  the  fugitive  surrendered  to  her  for  such  crimes  (in  the  plural)  as  may 
be  proved  by  the  facts  on  which  the  surrender  is  grounded. 
7GG 


CHAP.  XI.]  LTMITATION    AS    TO    TRIAL.  [§  270. 

"  This  does  not  seem  to  be  wholly  reciprocal,  and  if  the  United  States 
were  disposed  to  enter  into  a  treaty  under  this  act,  it  might  expect  some 
greater  equality  of  right  than  a  cursory  examination  of  this  provision 
in  the  act  seems  to  provide. 

"  It  is  quite  well  known  that  after  the  passage  of  the  act  of  1870  an 
effort  was  made  to  enter  into  a  treaty  with  Great  Britain  which  should 
enlarge  the  number  of  extradition  oflenses  and  otherwise  extend  the 
provisions  of  the  existing  treaty. 

"At  the  outset  it  was  apparent  that  the  act  of  1870  was  not  an  act  to 
carry  into  effect  treaties  or  conventions  for  extradition,  as  is  the  United 
States  act  of  1848,  but  one  providing  a  system  to  which  all  subsequent 
treaties  of  extradition  must  be  adapted,  and  which  could  be  apj^lied  to 
enforce  treaties  or  arrangements  made  subject  to  its  provisions. 

"This  Government  was  unable  to  agree  to  any  arrangement  based  on 
the  provisions  of  the  act  of  1870,  and  in  a  note  addressed  to  Sir  Edward 
Thornton,  the  British  minister,  under  date  of  January  27, 1871,  he  was 
informed  that  '  this  Government  understands  the  twenty-seventh  sec- 
tion of  the  extradition  act  of  1870  as  giving  continued  effect  to  the  ex- 
isting engagements  for  the  surrender  of  criminals.  Imperfect  as  they 
are,  in  view  of  the  long  conterminous  frontier  between  British  North 
America  and  the  United  States,  we  must  be  content  to  suffer  the  incon- 
venience until  Parliament  shall  put  it  in  the  power  of  Her  Majesty's  Gov- 
ernment to  propose  a  more  comprehensive  and  acceptable  arrangement.' 

"  The  British  Government  was  thus  distinctly  and  formally  advised 
of  the  position  and  of  the  views  of  the  United  States,  and  no  exception 
thereto  has  been  expressed. 

"A  further  effort  to  effect  a  treaty  was  made  in  1873,  after  the  passage 
by  the  British  Parliament  of  an  act  amending  the  act  of  1870,  which 
resulted  in  failure,  for  precisely  similar  reasons. 

"  This  failure  to  negotiate  a  new  treaty  arose  solely  because  the  Uni- 
ted States  could  not  accept  as  part  of  it  some  of  the  provisions  of  the 
act  of  1870,  and  preferred  to  go  on  under  the  treaty  of  1842,  as  thereto- 
fore construed,  and  practically  carried  into  effect  by  each  Government; 
and  thus  we  have  proceeded  up  to  the  present  time. 

"  In  support  of  the  construction  which  this  Government  in  1871,  in 
the  note  to  Sir  Edward  Thornton  above  referred  to,  gave  to  the  twenty- 
seventh  section  of  the  extradition  act,  it  appears  that  when  the  Court 
of  Queen's  Bench  was  called  to  pass  upon  the  very  question,  iu  the  case 
of  Bouvier  (27  Law  Times,  K  S.,  844),  the  attorney-general  stated  that 
the  intention  had  been  to  make  a  general  act,  which  should  apply  to  all 
cases  except  where  there  was  anything  inconsistent  with  the  treaties 
referred  to.  So  far  as  the  point  was  passed  on,  the  lord  chiefjustice 
expressed  the  oi)inion  that  it  was  the  intention,  while  getting  ri«l  of  the 
statutes  by  which  the  former  treaties  were  carried  out,  at  the  same  time 
to  save  those  treaties  in  their  full  integrity  and  force,  and  that  the  result 

707 


§  270.]  EXTKADITION.  [CHAP.  XI. 

hiid  been  accomplished.  One  of  the  other  justices  thought  the  question 
somewhat  doubtful,  and  the  third  agreed  with  the  chief-justice. 

"The  Solicitor-General  of  the  United  States,  in  his  opinion  in  Law^- 
rence's  case,  given  in  August  of  last  year,  reached  the  same  conclusion, 
that  the  treaty  was  not  affected  by  the  act. 

"  It  cannot  readily  be  believed  that  Parliament  intended  bj'  the  act  of 
1870  to  claim  the  right  to  alter  treaties  iu  existence  without  notice  to 
the  other  Government,  or  to  impose  new  conditions  upon  foreign  Govern- 
ments seeking  extraditions  under  treaties  iu  existence  prior  to  that  act. 

''  The  United  States  has  declined  to  become  subject  to  the  British 
act  of  1870,  and  with  knowledge  of  this  the  Government  of  Great  Bri- 
tain has  continued  constantly  to  ask  and  to  obtain  extraditions  under 
the  treaty  of  1842,  and  since  the  refusal  of  the  United  States  to  nego- 
tiate a  new  treaty  under  the  provisions  of  that  act. 

"  Since  the  passage  of  the  act  of  1870  Great  Britain  has  obtained  from 
this  Government  some  thirteen  warrants  of  extradition,  and  has  insti- 
tuted a  much  larger  number  of  proceedings  to  obtain  extradition.  In 
no  instance  has  Great  Britain  thought  it  necessary  to  tender  any  such 
stipulation  as  she  now  asks  from  the  United  States,  or  to  present  her 
requests  for  extradition  in  any  way  diflerent  from  that  In  which  they 
were  presented  prior  to  1870.  The  United  States  in  the  same  time  have 
instituted  numerous  proceedings,  and  at  this  moment  have  three  crimi- 
nals in  London  in  custody  upon  charges  of  forgery,  whose  extradition 
this  Government  is  seeking  iu  the  usual  manner  provided  by  the  treaty. 

"  During  this  period  no  intimation  has  reached  this  Government  that 
the  treaty  of  1842  was  not  in  full  force,  or  that  the  act  of  1870  was 
claimed  to  limit  its  operation,  or  to  impose  upon  this  Government  the 
necessity  either  of  changing  its  laws  or  of  giving  stipulations  not  known 
to  the  provisions  of  the  treaty,  and  not  heretofore  suggested,  nor  has 
any  representation  been  made  to  this  Government,  by  that  of  Great 
Britain,  on  account  of  any  proceedings  taken  in  the  case  of  Lawrence, 
mentioned  in  the  opinion  attributed  to  the  home  office,  iu  the  note  of 
Lord  Derby  to  General  Schenck,  before  referred  to. 

"  But  now,  with  three  important  cases  pending  in  London  at  the  pres- 
ent time  for  extradition,  in  one  of  which,  at  least,  all  the  formalities 
have  been  complied  with,  we  are  informed  in  substance  that  it  had  been 
supposed  up  to  the  present  time  by  the  British  home  office  that  our  law 
as  to  trials  for  other  than  extradition  offenses  was  in  agreement  with 
the  law  of  1870;  but  finding  it  to  be  otherwise,  we  are  confronted  with 
the  requirement  of  a  stipulation  in  order  to  obtain  what  is  guaranteed 
by  the  treaty  of  1842,  whereby  the  United  States  must  recognize  the 
right  of  the  British  Parliament,  by  statute,  to  change  existing  executory 
treaties,  and  to  impose  upon  this  Government  conditions  and  stipula- 
tions to  which  it  had  not  given  its  assent. 

"As  relates  to  the  particular  case  of  the  fugitive  Wiuslow,  there  is 
not,  so  far  as  I  am  aware,  any  intention  of  trying  him  for  any  offenses 
768 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  27 U. 

other  than  those  ou  which  indictments  were  transmitted,  and  for  which 
his  surrender  was  demanded  ;  but  the  United  States  will  give  no  stip- 
ulation of  which  the  treaty  does  not  authorize  the  demand. 

'^  As  the  stipuhition  or  condition  is  demanded  by  Great  Britain  as  a 
right,  the  right  of  the  demand  must  be  established. 

''The  President  regrets  that  a  condition  which,  in  his  judgment,  is 
without  any  justification  under  the  treaty  should  have  been  asked.  He 
regards  the  question  thus  presented  as  of  a  grave  and  serious  chaVacter, 
on  the  final  solution  of  which  must  probably  depend  the  continuance  of 
the  extradition  article  of  the  treaty  of  1843.  He  cannot  recognize  the 
right  of  any  other  power  to  change  at  its  pleasure,  and  without  the  as- 
sent of  the  United  States,  the  terms  and  conditions  of  an  executory 
agreement  in  a  treaty  solemnly  ratified  between  the  United  States  and 
that  power.  He  thinks  that  the  twenty-seventh  section  of  the  British 
act  of  1870  was  specially  intended  to  exempt  the  treaty  with  the  United 
States  from  the  application  of  any  of  the  new  conditions  or  provisions 
embodied  in  that  act,  and  to  leave  that  treaty  to  be  construed,  and  the 
surrender  of  fugitives  thereunder  to  be  made,  as  had  been  jireviously 
done. 

"He  hopes  that,  on  a  further  consideration.  Her  Majesty's  Govern- 
ment will  see,  in  the  section  referred  to,  the  effect  which  he  supposes  it 
was  designed  to  have. 

"  But  he  recognizes  that  it  is  for  the  British  Government  to  construe 
and  enforce  its  own  statutes;  and  should  Her  Majesty's  Government 
finally  conclude  that  the  British  Parliament  has  attached  a  new  condi- 
tion to  the  compliance  by  that  Government  of  its  engagement  with  the 
United  States  under  the  tenth  article  of  the  treaty  of  1842  relating  to 
extradition,  requiring  from  the  United  States  stipulations  not  provided 
for  or  contemplated  in  the  treaty,  he  will  deei)ly  regret  the  necessity 
which  will  thereby  be  imposed  upon  him  and  does  not  see  how  he  can 
avoid  regarding  the  refusal  by  Great  Britain  to  adhere  to  the  provisions 
of  the  treaty  as  they  have  been  reciprocally  understood  and  construed 
from  its  date  to  the  present  time,  or  the  exaction  by  that  Government 
of  a  condition  heretofore  unknown,  as  the  infraction  and  termination  of 
that  provision  of  the  treaty. 

"  You  are  not  authorized  to  enter  into  any  stipulation  or  understanding 
as  to  the  trial  of  Winslow,  in  case  he  be  delivered  up  to  justice.  His 
surrender  is  asked  under  and  in  accordance  with  the  ])rovisions  of  the 
tentb  article  of  the  treaty  between  the  United  States  and  Great  Britain 
of  the  9lh  of  August,  1842.  He  is  charged  with  a  crime  included  within 
the  list  of  crimes  enumerated  in  the  treaty ;  that  crime  was  committed 
within  the  jurisdiction  of  the  United  States,  and  he  has  sought  an  asy- 
lum and  been  found  within  tlie  territories  of  Great  Britain,  and  the 
United  States  have  produ(;ed  such  evidence  of  his  eiiniinality  as  ac- 
cording to  the  laws  of  Great  liritain  would  justify  his  ai>pn'hension  and 
S.  Mis.  102— VOL.  II 10  7G0 


§  270.]  EXTRADITION.  [CHAP.  XI. 

commitment  for  trial  if  tlie  crime  or  olTeuse  liad  been  committed  in 
Great  Britain. 

"You  will  commuuicato  the  substance  of  this  to  Lord  Derby,  and, 
should  be  desire  it,  you  may  read  it  to  him. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Hoffuian,  Mar.  31,  1876.     MSS.  Inst.,  Gr.  Brit. ; 
For.  IJcl.,  1S76. 

"  [Telegram  ] 

"  London,  April  27,  1876. 
"Fisn,  Secretary,  Washington  : 

"If  Winslow  gets  before  Queen's  Bench  on  habeas  corpus,  am  1  to  em- 
ploy counsel  ?    Shall  not  intervene  unless  instructed. 

"  Hoffman,  ChargSy 

"Counsel  on  habeas  corpus  seems  impracticable  in  present  condition 
of  the  case.  You  will  i)resent  to  Lord  Derby  copy  of  eight  sixty-four, 
with  a  note  referring  to  your  previous  oral  communication  thereof,  and 
stating  that  you  do  so  under  instructions,  in  a  final  hope  of  still  pre- 
serving the  treaty,  and  in  the  further  hope  that  he  may  see  therein  suf- 
ficient cause  to  prevent  the  discharge  of  Winslow,  and  to  order  his  sur- 
render under  the  tenth  article  of  the  treaty  of  eighteen  forty-two,  in 
accordance  with  the  requisition  of  this  Government. 

"You  will  further  state,  in  substance,  that  although  the  United  States 
does  not  recognize  the  statute  of  eighteen  seventy  as  controlling  extra- 
dition under  our  treaty,  still,  as  Great  Britain  claims  to  be  governed 
thereby,  you  hope  that  his  lordship  will  see  in  the  twelfth  section  au- 
thority for  his  intervention  to  cause  the  surrender  in  accordance  with 
the  treaty." 

Mr.  Fish,  Sec.  of  Stale,  to  Mr.  Hoffman  (telegram),  Apr.  28, 1876.    For.  Eel.,  1870. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
13th  instant,  informing  me,  at  the  request  of  the  governor-general  of 
Canada,  that  one  Maraine  Smith,  late  of  Detroit,  was  committed  as  a 
fugitive  from  justice  in  the  county  of  Essex,  Ontario,  upon  the  4th 
of  April  last,  and,  as  the  usual  application  for  his  surrender,  under  the 
extradition  treaty,  had  not  been  received,  that  upon  the  4th  of  June  he 
will  be  entitled  to  claim  his  discharge. 

"  Upon  the  11th  ultimo  the  governor  of  Michigan  addressed  me, 
stating  that  the  person  referred  to,  after  an  examination,  had  been  com- 
mitted for  the  crime  of  murder,  and  was  held  to  await  extradition,  and 
requested  that  the  proper  steps  be  taken  for  that  purpose. 

"The  case  had  not  been  brought  to  the  attention  of  this  Department 
prior  to  that  time. 

"As  Her  Majesty's  Government,  at  the  time  of  the  receipt  of  this 
communication,  had  already  informed  the  United  States  that  Winslow 
and  other  fugitive  criminals,  then  in  British  jurisdiction,  in  whose  cases 
the  necessary  steps  had  been  taken,  and  who  had  been  committed  for 
extradition,  would  not  be  surrendered  i^ursuant  to  the  stipulations  of 
770 


CHAP.  XI.]  LIMITATION   AS    TO    TRIAL.  [§  270. 

the  lOtli  article  of  the  treaty  of  1842,  it  was  deemed  advisable  to  desist 
from  i)referriD8-  applications  for  extradition  in  new  cases  until  the  fiual 
decision  of  Her  JNIajesty's  Government  on  that  question  should  be 
reached,  and  the  governor  of  Michigan  was  informed  of  this  conclusion. 
"While,  therefore,  requesting  you  to  express  the  tbanlcs  of  this 
Government  to  his  excellency  the  governor-general  for  his  courtesy  in 
furnishing  the  information  referred  to,  I  have  to  request  that  you  will 
inform  him  of  the  reason  why  no  formal  request  has  been  preferred  in 
this  case  pending  the  decision  of  Her  Majesty's  Government  in  the 
Wiuslow  and  other  cases  now  before  it." 

Mr.  Fish,  Sec.  of  State,  to  Sir  E.  Thornton,  May  17,  1876.     MSS.  Notes,  Gr. 
Brit. ;  For.  Eel.,  1876. 

"  Your  ;N'o.  79,  under  date  of  May  6,  inclosing  a  copy  of  a  note  ad- 
dressed to  you  by  Lord  Derby,  in  relation  to  the  extradition  of  Wiuslow, 
bearing  date  Maj-  4,  reached  me  late  on  the  17th  instant. 

"  This  note  of  Lord  Derby's  on  its  face  is  a  reply  to  a  note  from  you 
to  him,  wherein  you  communicated  the  general  purport  of  an  instruc- 
tion addressed  by  me  to  you,  under  date  of  the  31st  of  March  last ;  but 
on  the  29th  of  April  last  you  had  given  to  Lord  Derby  a  copy  of  the 
instruction  of  31st  of  March.  His  lordship's  note  of  the  4th  of  May  is 
therefore  taken  as  a  reply  to  that  instruction,  although  it  contains  allu- 
sion to  some  expressions  in  your  note  which  were  not  there  in  pursuance 
of  your  instruction. 

"If  Her  Majesty's  Government  had  simply  persisted  in  a  refusal  to 
deliver  Winslow  and  the  other  criminals  now  in  custody  awaiting  ex- 
tradition, for  the  reasons  heretofore  given,  it  would  have  been  uuueces- 
sary  to  prolong  discussion,  inasmuch  as  the  distinct  and  definite  refusal 
of  this  Government  to  give  any  assurance  or  stipulation  not  called  for 
by  the  treaty,  or  to  admit  the  right  of  Great  Britain  to  exact  from  the 
United  States  stipulations  foreign  to  the  treaty,  as  a  condition  of  the 
performance  by  Great  Britain  of  her  obligations,  had  already  been  com- 
municated to  Lord  Derby. 

"  But  as  the  note  in  question  assumes  to  give  the  grounds  on  which  the 
refusal  to  surrender  the  criminals  is  based,  and  in  large  measure  seems 
to  change  those  previously  assumed,  and  as  the  United  States  cannot 
assent  to  the  accuracy  of  many  of  the  statements  made,  or  to  the  infer- 
ences drawn  therefrom,  it  seems  necessary  that  some  repl^' should  be 
made. 

"  In  my  instruction  of  the  31st  of  ^Farch  last,  reference  was  made  in 
detail  to  numerous  cases  decided  in  the  courts,  and  to  evidence  from 
various  sources,  alike  British  and  American,  including  the  testimony  of 
Britisli  oflicials  best  versed  in  extradition  law,  the  oi)ini()ns  of  Biiti.sh 
Crown  lawyers,  the  publislied  decisions  of  British  coiiils  and  Britisli 
writers  upon  extradition  law,  that  where  a  criminal  \v;isin  good  iaith 
demanded  for  one  offense  within  tlie  treaty,  and  surrendered  therefor, 

771 


§  270.]  EXTRADITION.  [CIIAP.  XI. 

there  was  no  agreement,  understanding,  nor  practice  that  he  might  not 
be  placed  on  trial  for  another  offense  with  which  he  was  charged,  in 
addition  to  the  extradition  crime. 

"Lord  Derby  does  not  explain,  modify,  or  deny  tbat  the  whole  current 
of  authority  is  to  this  eflect,  but  meets  the  point  with  the  assertion  that 
'  there  is  no  case  within  the  knowledge  of  this  [the  British]  Government 
in  which  a  prisoner  was  surrendered  by  England  for  one  offense,  and 
tried  by  the  United  States  for  a  different  one,'  and  statics  that  the  case 
of  Ileilbr(*nn  was  a  '  private  j'l'osecution,'  and  that  no  evidence  can  be 
found  of  the  attention  of  the  Government  having  been  called  to  it.  In 
a  subsequent  passage  he  again  speaks  of  '  private  prosecutions,'  to  which 
the  attention  of  the  Government  has  not  been  called.  I  am  at  a  loss  to 
appreciate  the  application  of  the  term  '  private '  to  the  prosecution  of  a 
felony  in  the  name  and  behalf  of  the  state  or  sovereign.  If,  however, 
it  means  no  moie  than  what  is  claimed  when  it  is  said  that  the  attention 
of  the  Government  had  not  been  called  to  a  i)articular  case,  the  ques- 
tion arises  as  to  that  jealous  protection  of  individual  and  personal  rights 
which  is  the  just  pride  of  British  as  it  is  of  United  States  laws,  and 
which  constitutes  so  large  a  part  of  Lord  Derby's  note.  The  alleged 
criminal  in  whose  behalf  the  state  has  exercised  its  sovereign  power, 
whom  it  has  seized  and  brought  from  a  distant  land  under  solemn  treaty 
obligations,  is  especially  entitled  to  be  looked  after  by  the  state,  and  be 
protected  in  such  rights  as  belong  even  to  the  criminal. 

"  If  Lord  Derby's  theory  that  the  prohibition  of  the  trial  of  a  sur- 
rendered fugitive,  for  other  than  the  specific  crime  for  which  he  had 
been  delivered,  be  correct,  either  as  a  recognized  principle  of  the  gen- 
eral or  international  law  of  extradition  (if  there  be  any  such  agreement 
between  nations  on  the  subject  of  extradition  as  to  form  what  can  be 
regarded  as  'international  law'),  or  as  implied  in  the  treaty  of  1842, 
then  a  surrendered  fugitive  is,  under  such  international  law  (if  such  it 
be),  or  under  such  treaty,  placed  in  the  hands  of  the  receiving  Govern- 
ment with  the  highest  obligations  of  honor,  of  justice,  and  of  interna- 
tional faith  to  protect  that  fugitive  from  any  other  i^rosecution  than 
such  as  that  Government  claims  that  he  is  liable  to. 

"  The  fugitive  is  surrendered  to  the  Government  in  its  political 
capacity,  and  if  he  be  subjected  to  any  prosecution  against  which  he 
has  a  right  to  immunity,  the  Government  into  whose  especial  charge 
and  guardianship  he  has  been  surrendered  for  a  specific  pur])ose  vio- 
lates its  faith  and  neglects  its  duty,  both  to  the  individual  surrendered 
and  to  the  state  which  surrendered  him.  On  the  theory  advanced  by 
his  lordship,  the  surrendered  fugitive  must  look  to  the  state  in  its 
political  character — what  Lord  Derby  calls  'the  Government' — for  his 
protection ;  ani  that  poM'er,  call  it  state  or  government,  cannot  escape 
its  responsibility  by  the  plea  of  ignorance,  and  that  its  attention  had 
not  been  called  to  the  case. 

rr'jct 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  270. 

'•'  Heilbronn  was  a  fugitive  criinigal  demanded  by  Great  Britain  under 
the  treaty  of  18'42,  on  the  charge  of  forgery,  and  was  accordingly  deliv- 
ered up  by  the  United  States  to  British  justice.  He  was  tried  for  for- 
gery before  a  British  court  and  acquitted,  and  was  thereupon  indicted 
and  tried  for  a  public  ofiense  not  named  in  the  request  or  warrant  of 
extradition,  and  one  not  included  in  the  treaty,  and  he  was  thereof 
convicted. 

"  If,  under  British  jurisprudence,  no  public  prosecutor  is  provided  to 
enforce  her  law  against  criminals  surrendered  on  a  demand  made  upon 
a  foreign  state,  and  the  duties  of  a  prosecutor  are  discharged  by  an  in- 
dividual not  technically  a  servant  of  the  Crown,  but  permitted  to  assume 
that  office,  can  the  Government  of  Great  Britain  claim  or  expect  that 
the  regular  proceedings  in  her  courts  can  be  disavowed  by  the  political 
branch  of  the  Government  as  not  having  been  brought  to  its  attention, 
or  that  such  proceedings  form  no  element  in  determining  what  has  been 
the  practice  of  the  two  Governments  under  the  treaty? 

'^  Heilbronn's  case  was  not  referred  to  as  an  exceptional  one,  but  as 
one  of  the  numerous  instances  all  tending  to  prove  the  unbroken  practice 
and  understanding  of  the  two  Governments. 

''In  addition  to  Heilbronn's  and  the  other  cases  heretofore  referred  to 
by  me,  there  are  other  and  recent  decisions  of  distinguished  British 
judges  directly  upon  the  point,  and  in  full  harmony  with  the  views  main- 
tained by  the  United  States. 

"  Mr.  Justice  Eamsay,  in  the  case  of  Israel  Eosenbaum,  in  the  supreme 
court  of  Canada,  in  1874,  when  the  discharge  of  the  prisoner  was  claimed 
because  there  was  no  prohibition  under  the  laws  of  the  United  States 
against  the  trial  of  criminals  for  offenses  other  than  those  for  which 
they  were  extradited,  as  was  required  by  the  act  of  1870,  says : 

'"If  it  were  recognized  as  a  princii)le  of  international  law  that  a 
prisoner  extradited  could  only  be  tried  for  the  crime  for  which  the  ex- 
tradition took  place,  it  would  not  have  been  necessary  for  the  Imperial 
Parliament  to  make  these  provisions  (alluding  to  the  provisions  of  the 
act  of  1870),  and  adds,  'I  am  not,  however,  aware  that  it  has  been  laid 
down  in  England,  that  a  man  once  within  the  jurisdiction  of  English 
courts  could  set  up  the  form  of  his  arrest,  or  the  mode  by  which  ho 
came  into  custody,  as  a  reason  for  his  discharge  when  accused  of  crime;' 
and  the  same  was  substantially  held  in  the  case  of  \Yorms,  extradited 
from  Canada  within  the  last  few  weeks. 

"  It  is  not  the  province  of  any  Government  to  make  inquiry  into  the 
extent  of  knowledge  which  the  political  dcpaitmcnt  of  another  Govern- 
ment may  have  as  to  the  practice  or  the  administration  of  justice  in  its 
courts  in  reference  to  extradition,  but  1  have  alluded  in  prior  instruc- 
tions to  the  uniform  }»ractice,  without  dissent  or  objection,  in  both  coun- 
tries under  the  treaty  of  1842,  and  have  shown  that  it  was  common  in 
both  countries,  and  that  it  was  held  l)y  high  jndi(Mal  decisions  in  both, 

773 


$  270.]  EXTRADITION.  [CHAP.  XI. 

that  a  prisoner,  extradited  iiv  p:ood  faith  for  an  extradition  crime,  might 
also  be  tried  for  another  crime. 

"  Lord  Derby,  in  his  note,  again  refers  to  the  provisions  of  the  act  of 
Congress  of  August  12,  1818,  as  showing  that  persons  delivered  up 
could  not  be  tried  for  any  oflenses  other  than  those  for  which  they  were 
surrendered;  although  in  my  former  instructions  I  stated  that  the  United 
States  district  court,  and  the  Solicitor-General,  acting  in  the  place  of 
the  Attorney-General,  had  each  separately  decided  precisely  the  oppo- 
site. The  construction  of  the  municipal  laws  of  a  state  pertain  to  that 
state,  and  not  to  other  Governments. 

"  In  the  United  States,  a  treaty,  duly  ratified  and  exchanged,  is  the 
supreme  law  of  the  land,  and  its  provisions  are  binding  without  legisla- 
tion. It  becomes  convenient,  however,  from  time  to  time  to  enact  laws 
to  regulate  the  general  course  of  proceedings  arising  under  one  or  a 
variety  of  treaties;  but  such  legislation  is  purely  internal  and  munici- 
pal. 

"  The  act  of  1848  recognizes  the  fundamental  doctrine  that  the  sur- 
render of  a  fugitive  criminal  is  a  political  act  of  the  Government,  and 
the  function  of  the  court  or  magistrate  is  only  to  determine  whether  a 
case  has  been  made  out  iu  accordance  with  the  treaty  or  the  statute 
enacted  in  aid  of  its  enforcement.  It  neither  adds  to  nor  detracts  from 
the  obligations  created  by  the  treaty,  and  is  uot  essential  to  the  execu- 
tion by  the  United  States  of  its  engagements  under  the  various  extra- 
dition treaties  into  which  this  Government  has  entered,  but  afibrds  a 
convenient  and  satisfactory  aid  in  the  administration  of  those  obliga- 
tions. 

"  When  the  United  States,  by  the  twenty-seventh  section  of  the  treaty 
of  1794,  in  much  the  same  language  as  the  present  treaty,  engaged  to 
deliver  up  fugitives,  no  act  whatever  was  passed,  but  fugitive  criminals, 
nevertheless,  were  given  up  on  tlie  demand  of  Great  Britain  under  that 
provision  of  the  treaty. 

''  In  like  manner  when  the  tenth  article  of  the  treaty  of  1842  went  into 
eflect,  no  statute  was  needed,  but  six  years  thereafter  (in  1848)  the  act 
in  question  was  passed  as  being  thought  advisable  to  provide  machin- 
ery to  carry  out  all  treaties  providing  for  extradition,  not  only  with 
Great  Britain,  but  with  all  Governments  with  which  the  United  States 
had  and  might  have  treaties,  no  matter  what  may  be  their  particular 
provisions. 

"  Of  these  treaties,  some,  as  I  have  said,  contain  restrictions  as  to  the 
crimes  for  which  a  criminal  may  be  tried  by  the  state  demanding  him, 
and  others  are  silent  on  the  question  ;  but  the  act  applies  to  all. 

"Lord  Derby,  in  his  note  to  you,  contends  that  the  British  extradition 
act  of  1870  imposed  no  new  condition  upon  the  treaty  of  1842,  but  in 
his  note  of  April  13  he  refers  to  the  condition  '  which  Iler  Majesty's 
Government  are  compelled  to  require  under  section  3,  subsection  2,  of 
the  act  of  1870.' 
774 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  270. 

"When  it  is  proposed  to  engraft,  whether  by  implication  or  by  act  of 
Parliament,  upon  an  existing  treaty,  a  i)rovision  not  expressly  con- 
tainefl  therein,  I  may  be  permitted  to  look  info  the  debates  in  the 
British  Parliament  in  1860,  when  it  was  proposed  to  amend  a  bill  to 
carry  into  cfiect  the  treaty  with  France,  by  requiring  a  stipnlation  simi- 
lar in  its  purport  to  that  now  asked  of  the  United  States,  and  there  find 
that  his  lordship,  at  the  time  Lord  Stanley,  and  then,  as  now,  Her 
Majesty's  secretary  of  state  for  foreign  affairs,  opposed  the  amendment, 
saying  that  '  in  a  case  like  this,  international  courtesy  demanded  that 
the  treaty  should  not  be  materially  altered  without  communication  with 
the  other  party.' 

"  In  the  same  debate,  Lord  Cairns,  then  attorney-general  and  now  lord 
chancellor,  said  that  the  bargain  was  made  between  the  sovereigns,  and 
the  amendment  'proposed  to  introduce  a  new  ingredient  into  the  bar- 
gain which  did  not  exist  at  the  time  the  bargain  was  made.  It  might 
have  been  unreasonable  that  this  new  ingredient  had  not  been  introduced 
at  the  beginning,  but  to  introduce  it  now  was  simply  to  break  the  bar- 
gain which  the  sovereigns  had  made  and  Parliament  had  ratified;  it 
was  to  infringe  upon  treaty  engagements,  and  that  without  notice  to 
the  other  side.'  And  farther,  and  in  particular  reference  to  the  latter 
part  of  the  amendment,  quite  similar  to  the  provisions  of  the  act  of 
1870,  now  under  discussion,  he  said,  '  to  put  such  words  into  an  act  of 
Parliament,  which  did  not  exist  in  the  treaty,  would  only  be  offering  a 
gratuitous  insult  to  the  foreign  power  to  whom  it  applied,  without  secur- 
ing any  real  advantage.'    The  amendment  was  withdrawn. 

"The  treaty  between  Great  Britain  and  France,  which  was  the  sub- 
ject of  that  debate,  was,  like  that  between  Great  Britain  and  the  United 
States  of  1842,  silent  as  to  an  inhibition  of  the  prosecution  of  a  sur- 
rendered fugitive  for  other  than  the  specific  offense  for  which  he  was 
given  up.  The  proposition  in  Parliament  thus  sternly  and  honestly 
denounced  and  defeated  as  'discourteous,'  as  'breaking  a  bargain,'  as 
'infringing  upon  treaty  engagements,'  as  'a  gratuitous  insult  to  a  for- 
eign power,'  and  as  '  securing  no  real  advantage,'  is,  nevertheless,  what 
it  is  now  claimed  has  been  done  by  virtue  of  the  act  of  1870  with  regard 
to  the  United  States. 

"Her  Majesty's  Court  of  Queen's  Bench  in  Bouvier's  case,  and  more 
recently  the  courts  in  Canada,  have  substantially  held  the  same  high 
doctrine  which  the  eminent  statesmen  whom  1  have  cited  not  long  since 
announced  in  their  places  in  Parliament.  Neither  international  law  nor 
international  courtesy  have  changed  the  principles  on  which  they  were 
then  recognized  as  resting. 

"The  United  States  adheres  to  the  position  announced  in  my  former 
instruction,  that  it  will  recognize  no  power  to  alter  or  attach  conditions 
to  the  executory  parts  of  an  existing  treaty,  to  which  it  is  a  party,  with- 
out its  previous  assent. 

775 


5  270.]  EXTRADITION.  [CHAP.  XI. 

"  Lord  Derby  seems  to  imagine  some  want  of  leconeiliation  between 
the  views  of  tlie  United  States  upon  this  extradition  question  aud  those 
asserted  iu  its  behalf  on  the  rights  of  political  asylum,  aud  asks  what 
is  to  prevent  the  United  States  from  obtaining  a  prisoner  on  one  cluirge 
and  trying  him  for  a  political  offense.     The  answer  is  ready : 

"  The  inherent,  inborn  love  of  freedom,  both  of  thought  and  of  action, 
engraved  in  the  hearts  of  tlie  people  of  this  country  so  deeply  that  no 
law  can  reach  and  no  Administration  would  dare  to  violate. 

"A  large  proportion  of  those  who  sought  refuge  ou  our  shores  prior 
to  the  formation  of  this  Government  sought  this  country  for  the  enjoy- 
ment of  freedom  of  opinion  on  political  and  religious  subjects,  an;l  their 
descendants  have  not  forgotten  the  value  of  an  asylum  nor  the  obliga- 
tion of  a  state  to  shelter  and  protect  political  refugees.  Xeither  the 
extradition  clause  in  the  treaty  of  1794  nor  in  that  of  1842  contains 
any  reference  to  immunity  for  political  offenses,  or  to  the  protection  of 
asylum  for  political  or  religious  refugees.  The  public  sentiment  of  both 
countries  made  it  uiuiecessary.  Between  the  United  States  and  Great 
Britain  it  was  not  supposed  on  either  side  that  guarantees  were  required 
of  each  other  against  a  thing  inherently  impossible,  any  more  than,  by 
the  laws  of  Solon,  was  a  punishmeut  deemed  necessary  against  the 
crime  of  parricide,  which  was  beyond  the  possibility  of  contemplation. 

"  That  a  sentiment  stronger  than  written  law  has  been  sufficient  to 
prevent  any  attemj^t  to  infringe  ou  this  right,  it  is  but  necessary  to  re- 
call the  political  events  occurring  in  Eu^^land,  iu  Ireland,  and  in  the 
United  States  since  the  treaty  of  1842  has  been  in  force,  the  attempted 
and  actual  rebellions  which  have  been  witnessed,  and  the  consequent 
exodus  of  parties  engaged,  and  yet  not  a  demand  by  either  Government 
upon  the  other  for  the  surrender  of  a  fugitive  for  a  political  offense.  In 
this  respect,  what  has  been  must  continue  to  be. 

"  Careful  as  this  Government  has  been  and  will  be  to  maintain  the 
right  of  asylum  for  political  aud  religious  refugees,  it  is  mindful  of  the 
duty  to  its  own  citizens  and  to  society  at  large  devolving  upon  a  state 
to  visit  punishment  upon  offenders  against  the  laws — a  duty  in  no  way 
antagonistic  to  the  preservation  of  the  right  of  asylum. 

"The  rights  of  society  and  the  duties  of  the  state  in  the  punishment 
of  criminals  should  not  be  narrowed  and  unduly  restricted  upon  the 
vague  suggestion  or  fear  that  at  some  time  some  political  criminal  may 
be  placed  in  jeopardy. 

"  The  duty  of  Government  to  protect  its  own  citizens  and  puuish 
crime  is  equally  a  duty  with  that  of  affording  hospitality  and  shelter  to 
political  offenders  from  abroad. 

"The  Government  of  the  United  States  sees  no  reason  why  either 
should  be  sacrificed  to  the  other,  any  more  than  why  all  criminals  should 
escape  for  fear  some  political  offender  may  suffer, 

"His  lordship  believes  that  the  only  test  and  safeguard  for  the  liberty 
of  the  individual  aud  the  maintenance  of  the  right  of  asylum  are  to  be 
77G 


CHAP.  XI.]  LIMITATION   AS    TO    TRIAL.  [§  270. 

found  in  tlie  principle  for  wliicli  be  contends,  that  the  crime  or  crimes 
of  which  a  man  is  accused  in  the  country  surrendering,  and  for  which 
he  is  surrendered,  are  the  only  crimes  for  which  he  ought  to  be  tried  in 
the  country  claiming. 

"Differing  with  his  lordship,  I  think  that  the  liberty  of  the  individual 
and  the  right  of  asylum  would  be  equally  guarded  (independently  of  any 
reliance  on  common  principles  and  on  the  good  faith  of  both  nations) 
by  a  treaty  providing  that  a  surrendered  criminal  shall  be  tried  for  none 
other  than  one  of  the  several  crimes  enumerated  in  the  treaty,  and  for 
which  each  Government  is  willing  to  surrender.  The  fugitive  would 
thus  be  effectually  i)rotected  against  trial  for  a  political  offense,  justice 
would  be  more  effectually  administered,  and  crime  be  allowed  less  chance 
of  escape. 

"  The  United  States  would  not  object  to  such  limitation  in  any  treaty 
wbich  4^  may  be  called  upon  to  negotiate  with  a  foreign  state.  But, 
with  the  limitation  proposed  by  Lord  Derby,  it  is  possible  that  if  a  crim- 
inal be  surrendered  on  a  cbarge  of  murder,  and  if  the  evidence  devel- 
oped on  the  trial  establish  only  manslaughter,  he  might  consequently 
escape  ;  or  if  one  be  charged  with  assault  with  intent  to  kill,  and  after 
the  issuing  of  the  requisition  or  of  the  warrant  the  victim  dies,  it  is 
doubted  whether  in  this  case,  under  the  common  law  of  England,  which 
obtains  also  in  most  of  the  United  States,  the  fugitive  could  be  con- 
victed of  assault,  etc.,  and  not  having  been  surrendered  for  murder,  the 
doctrine  contended  for  would  protect  him  from  trial  on  such  cbarge. 

"I  should  not  here  again  advert  particularly  to  the  British  act  of 
1870  but  that  Lord  Derby's  note  seems  to  invite  some  examination  of 
its  provisions,  and  that  he  alludes  to  the  abortive  efforts  made  since  its 
enactment  to  negotiate  a  new  treat.y  of  extradition  between  the  United 
States  and  Great  Britain,  and  (as  he  seems  to  claim)  under  its  pro- 
visions. 

"  In  1870  Great  Britain  bad  three  treaties  of  extradition — with  France, 
Denmark,  and  the  United  States. 

''  Owing  to  difficulties  presented  by  British  law,  the  treaty  with 
France  had  been,  at  least  between  1843  and  18GG,  practically  a  dead 
letter;  the  treaty  with  Denmark  has  (as  has  been  represented)  rarely 
been  resorted  to,  if  at  all. 

"The  English  practice  as  to  extradition  has  been  witli  tbe  United 
States  under  the  treaty  of  1842.  What  that  practice  had  been  I  have 
shown. 

"  Great  Britain  at  this  time  determined  to  establish  a  system  of  ex- 
tradition, api)licable  to  all  Governments,  for  her  convenience,  and  in 
order  to  save  tbe  difficulty  wbicli  liad  been  experienced  in  obtaining  the 
assent  of  Parliament,  or  in  i)r()vi(liiig  the  means  of  carrying  out  a  treaty, 
and  in  substance  proposed  to  define  under  what  limitations  and  condi- 
tions extradition  ought  to  be  and  niiglit  be  bad. 

777 


§  270.]  EXTEADITION.  [CHAP.  XI. 

"  It  was  lier  riglit  to  propose  ii  system  and  to  invite  foreign  states  to 
accede  to  ber  views  and  make  treaties  tliereunder.  The  general  system, 
however,  was  anomalous.  It  applied  the  same  restrictions  to  a  Chris- 
tian or  a  non-Christian  state,  and  left  no  opportunity  to  suit  a  particu- 
lar treaty  to  the  particular  demands  of  two  Goverjiments.  Soon  after 
the  passage  of  the  act  of  1870,  a  proposition  was  made  to  the  United 
States  to  make  a  treaty  therennder,  and  after  some  examination  the 
proposition  was  declined. 

"In  1873,  an  amendatory  act  was  passed,  and  further  application 
being  made,  a  negotiation  was  inaugurated. 

"  DitHculties  were  experienced  at  the  outset,  and  at  every  stage,  grow- 
ing out  of  the  system  which  had  been  adopted  and  the  inflexible  char- 
acter of  the  provisions  of  the  act.  Various  drafts  were  from  time  to 
time  prepared  at  the  British  foreign  olfice,  and  discuvssed,  with  an  effort 
to  reach  an  agreement.  In  these  drafts  it  was  proposed  that  a  criminal 
should  not  be  tried  for  any  offense  committed  prior  to  his  surrender, 
other  than  the  particular  oftense  on  account  of  which  his  surrender  was 
made ;  and  while  an  eflbrt  was  made  to  extend  the  right  to  try  a  crimi- 
nal to  any  of  the  extradition  crimes  named  in  the  treaty,  and  to  any 
higher  crime  than  that  for  which  he  was  surrendered,  the  effort  was 
abandoned  because  the  United  States  was  informed  that  under  the  act 
a  provision  was  inadmissible  by  which  an  offender  surrendered  for  one 
offense  named  in  the  schedule  could  be  tried  for  any  other  than  the  ex- 
tradition crime.  The  negotiation  was  continued,  however,  until  June, 
1874,  when  the  United  States  reached  the  conclusion  that  a  treaty  could 
not  be  negotiated  under  the  act. 

"That  this  Government  ever  reached  or  expressed  the  opinion  that 
this  act  was  the  embodiment  of  what  was  the  general  opinion  of  all 
countries  on  the  subject  of  extradition,  is  far  from  correct. 

"  On  the  contrary,  the  United  States  was  and  is  of  the  opinion  that,  as 
the  provisions  in  a  treaty  placing  limits  on  the  right  of  a  foreign  state 
to  try  extradition  criminals  are  chiefly  inserted  to  protect  political  ref- 
ugees, it  amounts  to  a  surrender  of  criminal  justice  to  that  principle  to 
limit  the  right  to  a  trial  for  the  single  particular  crime  named  in  the 
warrant  of  extradition,  but  that  a  proper  limitation  might  be  made  by 
providing  that  the  criminal  shall  be  tried  for  no  political  offense,  and 
for  no  crime  not  an  extradition  crime. 

"  Such  is  understood  to  be  the  provision  in  almost  all  the  French 
treaties  negotiated  with  European  powers ;  such  was  substantially  the 
provision  in  the  treaty  negotiated  between  Great  Britain  and  France  in 
18j2,  and  such  is  the  express  provision  inserted  in  the  treaty  negotiated 
between  the  British  island  of  JMalta  and  Italy  in  18G3,  and  approved  in 
Great  Britain. 

"  From  the  earliest  period  this  Government  has  liad  occasion  to  con- 
sider the  questions  arising  under  extradition  law ;  the  Articles  of  Con- 
federation having  extradition  provisions,  as  has  the  Constitution  of  the 
778 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  270. 

United  States,  governing  tlie  question  between  the  States  of  tlie  Union  ; 
and  while  the  United  States  do  not  profess  to  lay  down  rules  of  inter- 
national law  on  this  question,  this  Government  does  not  consider  it 
now  for  the  first  time,  nor  has  its  jurisprudence  been  silent  in  develop- 
ing the  system.  In  the  negotiation  referred  to,  the  attention  of  the 
Government  of  the  United  States  was  directed  to  the  proposed  treaty 
more  than  to  the  act,  looking  to  its  provisions  as  binding  on  the  Govern- 
ment of  Great  Britain,  entirely  irrespective  of  the  act  in  question. 

"  But  many  of  the  provisions  of  the  act  did  not,  and  do  not,  seem  to 
be  reciprocal,  and  appear  to  furnish  excuses  for  a  failure  to  perform  aii 
obligation  imposed  by  a  treaty  made  thereunder,  or  a  shelter  for  a  re- 
sponsibility which  naturally  belonged  to  the  Government. 

"  In  view  of  the  position  assumed  by  Great  Britain  during  this  con- 
troversy, by  which  treaty  provisions  are  practically  made  subservient 
to  acts  of  Parliament,  the  difficulty  and  want  of  reciprocity  in  making 
any  treaty  thereunder  become  more  ai)parent. 

"It  is  not  my  intention  to  attempt  to  critically  examine  this  British 
statute,  but  it  will  not  be  inappropriate  to  refer  to  some  of  these  pro- 
visions. 

"Her  Majesty's  Government  reserves  to  itself  the  right  by  section  2, 
after  an  arrangementhas  been  made  with  a  foreign  state,  by  the  order 
in  council  applying  the  act,  or  by  any  subsegticnt  order  to  '  limit  the 
operation  of  the  order,'  to  restrict  the  same,  and  to  '  render  the  opera- 
tion thereof  subject  to  such  conditions,  exceptions,  and  qualifications 
as  may  be  deemed  expedient.' 

"Again,  section  2,  subdivision  one, provides  that  a  fugitive  criminal 
shall  not  be  surrendered  for  a  political  offense,  '  or  if  he  prove  to  the 
satisfaction  of  the  police  magistrate,  or  the  court  before  whom  he  is 
brought  on  habeas  corpus,  or  to  the  secretary  of  state,  that  the  requisi- 
tion for  his  surrender  has  in  fact  been  made  with  a  view  to  try  or  pun- 
ish him  for  an  offense  of  a  political  character.'  In  substance,  therefore, 
the  criminal  may  take  two  appeals  from  the  decision  of  a  police  magis- 
trate on  this  question,  and,  provided  he  succeeds  on  any  application,  he 
may  be  discharged  ;  but  no  provision  is  made  for  an  examination  of  the 
question  in  any  quarter,  should  the  police  magistrate  decide  in  favor  of 
the  criminal.  In  such  event  a  question,  which  is  purely  one  for  the 
Government  to  deal  with,  is  remitted  to  a  police  magistrate,  and  should 
he  improperly  decide,  the  Government  is  sheltered  by  a  quasi  judicial 
decision,  and  this  of  an  officer  not  nece.s.sarily  of  a  high  grade. 

"Again,  section  2,  sub.section  three,  provides  that  a  fugitive  criminal 
shall  not  be  surrendered  unless  provision  is  made  by  law  in  the  foreign 
state,  or  by  arrangement,  that  he  shall  nor,  until  he  has  had  an  oppor- 
tunity of  returning,  etc.,  be  tried  '  for  any  offense  committed  jmor  to  his 
surrender,  other  than  the  extradition  crime,  proved  by  the  facts  on 
which  the  surrender  is  grounded.' 

779 


^  270  ]  EXTRADITIOX.  [ciIAP.  XI. 

"  It  will  be  seen  tlic  word  'crime'  is  carel'iilly  used,  in  llie  !siiij;iil;ir, 
and,  as  Lord  Derby  states  in  bis  note,  tbis  Government  was  informed 
iu  1870  tbat  any  provision  would  bo  inadmissible  by  which  a  prisoner 
surrendered  for  one  offense  could  be  tried  for  any  'other  than  the  ex- 
tradition crinie  for  which  he  was  surrendered.' 

"  But  when  the  corresponding  provision  limiting  Great  Britain  to 
trials  is  examined  (section  10),  it  is  ])rovided  that  a  criminal  so  sur- 
rendered '  shall  not  be  triable  or  tried  for  any  offense  committed  i>rior 
to  the  surrender  in  any  part  of  Her  Majesty's  dominions,  other  than  such 
of  the  said  crimes  a^  may  he  proved  by  the  facts  on  which  the  surrender 
is  grounded.' 

"  The  want  of  reciprocity  of  these  provisions  is  quite  clear,  inviting 
frequent  questions  and  difference. 

"  To  make  one  further  remark  as  to  this  act,  the  latter  part  of  section 
7  provides  that  if  the  secretary  of  state  is  of  opinion  that  an  offense  is 
one  of  a  political  character,  he  may  refuse  an  order  for  a  warrant  of 
apprehension,  and  that  he  may  'at  any  time  order  a  fugitive  criminal, 
accused  or  convicted  of  such  offense,  to  be  dischar;:ed  from  custody.' 

"In  the  drafts  of  treaties  prepared  and  submitted  to  this  Govern- 
ment under  this  act,  no  such  corresponding  authority  to  discharge 
ciiminals  in  custody  was  proposed  to  be  given  to  the  United  States, 
nor  docs  the  act  seem  to  contemplate  a  reciprocal  right  to  other  powers. 

"  I  repeat,  that  this  act  does  not  concern  the  United  States,  except  in 
so  far  as  it  is  put  forward  to  limit  our  treaty  rights,  and  I  have  been 
drawn  into  any  consideration  of  its  system,  or  particular  provisions 
only  from  the  language  of  Lord  Derby,  that  it  was  the  embodiment  of 
the  general  opinion  of  all  countries  on  the  subject  of  extradition. 

"]\Ioreover,  if  the  United  States  had  been  willing  to  negotiate  a  new 
treaty,  which  should  contain  certain  restrictions  as  to  trials  not  included 
in  the  existing  treaty,  and  give  certain  advantages  not  known  thereto, 
such  readiness  could  not  justify  Great  Britain,  after  the  negotiation  had 
failed,  in  withholding  all  the  advantages  and  in  seeking  to  ingraft  upon 
the  old  treaty  such  of  the  rejected  provisions  as  she  might  select;  par- 
ticularly so  when  the  act  of  Parliament  of  1813  (G  and  7  Vict.,  ch.  57) 
was  by  its  provisions  to  continue  as  long  as  the  treaty;  and  the  twenty- 
seventh  section  of  the  act  of  1870  exempted  the  treaty  with  the  United 
States  from  the  clauses  which  were  foreign  to  its  terms,  and  when  the 
United  States,  soon  after  tlio  passage  of  the  act  of  1870,  and  on  Janu- 
ary 27, 1871,  had  informed  Her  Majesty's  Government  that  this  Govern- 
ment understood  the  twenty-seventh  section  of  the  act  of  1870  as  giving 
continued  effect  to  the  existing  engagements  for  the  surrender  of  crimi- 
nals, to  which  no  dissent  was  at  any  time  or  in  any  form  or  manner  ex- 
pressed. In  fact,  the  understanding  of  the  Untited  States  on  this  ques- 
tion was  not  oidy  not  dissented  from,  but  has  been  sustained  by  the 
supreme  court  of  Canada  in  Worms's  case  in  1870,  and  iu  llosenbaum's 
case  in  1874,  where  the  court  states :  '  I  cannot  see  how  a  new  provis- 
780 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  270. 

ion  of  the  act  of  1870  could  be  consistent  with  the  treaties  with  France, 
the  United  States,  and  Denmark;'  and  by  the  conchision,  so  far  as  a 
conclusion  was  reached,  by  the  Court  of  Queen's  Bench  in  the  case  of 
Bouvier,  in  1872,  to  which  I  Lave  heretofore  referred,  where  the  lord 
chief  justice  says  tbat,  although  he  hesitates  to  express  an  opinion,  he 
plainly  sees  that  it  was  intended,  wbile  getting  rid  of  the  statutes  by 
which  the  treaties  were  confirmed,  to  save  the  existing  treaties  in  their 
full  integrity  and  force,  and  that,  had  it  been  necessary  to  decide  that 
point,  he  would  have  been  prepared  to  do  so. 

'•Having  examined  that  case  with  care  as  to  what  was  there  decided, 
I  read  with  surprise  Lord  Derby's  statement  that  the  point  decided  was 
that,  under  the  provisions  of  the  French  treaty,  unless  it  had  been  proved 
to  the  court  that  the  French  law  had  provided  that  Bouvier  could  not 
be  tried  for  any  other  offense  than  that  for  which  he  was  surrendered, 
Bouvier  could  not  have  been  delivered  up  ;  and  I  am  quite  satisfied  that 
a  perusal  of  the  case  itself  will  tend  to  a  very  different  conclusion. 

"  Lord  Derby  makes  reference  to  certain  correspondence  between  an 
official  of  the  home  office  and  the  solicitors  of  Lawrence  soon  after  his 
surrender,  and  before  any  representation  had  been  made  to  this  Gov- 
ernment, This  correspondence  assumed  in  a  few  words  to  prejudge 
and  dispose  of  the  whole  question,  and  to  state  what  was  the  law  of 
this  country,  and  the  general  law  of  extradition  of  all  countries,  in  ref- 
erence to  the  trial  of  surrendered  fugitives.  It  was  unknown  to  and  un- 
authorized by  this  Government,  and  founded  on  the  representation  and 
the  argument  of  the  criminal.  It  appeared  in  the  public  prints,  and 
was  used  by  the  counsel  and  friends  of  Lawrence  in  the  United  States 
to  prejudge  the  question  and  create  difficulty  between  the  two  Govern- 
ments ;  and  I  deeply  regret  the  necessity  which  requires  me  to  question 
the  reference  to  ex  parte  representations  made  by  the  paid  solicitors  of 
a  criminal  to  an  official  of  a  foreign  power  in  the  discussion  of  a  grave 
question  involving  the  rights  and  impugning  the  conduct  of  a  friendly 
state,  and  jeop;uding  the  maintenance  of  a  treaty  of  long  standing  and 
of  beneficial  operation, 

"Lord  Derby  also  quotes  a  letter  of  instruction  addressed  by  the 
Attorney-General  of  the  United  States  to  the  district  attorney  at  Xew 
York  in  reference  to  the  trial  of  Lawrence,  whose  case  in  the  whole 
correspondence  seems  to  have  overshadowed  that  of  Wiuslow,  which 
alone  is  the  subject  of  the  ])resent  requisition  made  by  the  United  States 
ui)on  Tier  Majesty's  Government,  aiul  his  lordship  inquires  as  to  the 
l)ower  of  tlw  Attorney-General  over  prosecutions  instituted  against 
extradited  criminals. 

•'The  letter  in  (picstion  was  addre.s.sed  by  the  head  of  the  Department 
of  Justice  to  one  of  his  subordinate  officers  in  reference  to  the  conduct 
of  a  ca.se  under  his  charge  The  .Attorney  General  directs  that  *  Law- 
rence rinist  b(i  first  tried  upon  the  clnuge  U|kui  which  h(^  was  extradited, 
und  upon  no  other,  until  that  trial  is  ende(l.'     This  Iefl<'i- of  instruction, 

781 


§  270.]  EXTRADITION.  [CHAP.  XI. 

passing  from  ii  superior  to  a  suboriiiuate  oflicer,  Nvas  not,  aucl  was  not 
iuteuded  to  be,  au  exposition  of  the  views  of  the  Government  upon  any 
general  proposition,  bat  a  speciQc  instruction  in  a  particular  case;  and 
wbetlier  t)r  not  lie  had  ever  examined  the  opinion  of  the  late  distin- 
guished under-secretarj'  of  state  for  foreign  affairs  of  Iler  Majesty's 
Government,  he  seems  to  have  been  guided  by  the  same  appreciation 
of  treaty  rights  and  of  international  law  which  led  Lord  Ilammond,  in 
his  examination  before  the  special  committee  of  the  House  of  Commons, 
to  say:  'We  admit  in  this  country  that  )f  a  man  is  bona  Jul  e  tried  for 
an  offense  for  which  he  was  given  up,  there  is  nothing  to  prevent  his 
being  subsequently  tried  for  another  offense,  either  antecedently  com- 
mitted or  not.' 

"  In  reply  to  the  que«lion  of  Lord  Derby  as  to  the  power  of  the  At. 
torney-Geueral  over  prosecutions,  it  will  be  borne  in  mind  that  in  the 
United  States  an  offense  may  be  against  Federal  laws,  or  against  the 
laws  of  one  of  the  States.  The  Attorney-General  has  power  to  control 
all  criminal  ])rosecution  for  offenses  against  the  Government  pending  in 
the  Federal  courts,  but  no  i)ower  whatever  to  interfere,  directly  or  in- 
directly, in  any  State  prosecution.  The  President  has,  in  like  manner, 
power  to  pardon  criminals  convicted,  and  to  direct  the  suspension  or 
dismissal  of  criminal  prosecutions  in  the  Federal  courts,  but  none  to 
pardon  those  tried  and  convicted  in  the  State  courts,  or  to  control  the 
proceedings  of  these  courts. 

"  Criminals  of  both  classes  come  under  the  extradition  treaty.  It  hap- 
I)ens  that  Lawrence  is  charged  with  crimes  against  the  Government, 
and  Winslow  and  the  other  forgers  with  crimes  against  State  laws. 

'' Neither  the  President,  nor  any  officer  of  the  Federal  Government, 
has  power  to  control  or  to  dismiss  the  prosecution  in  Winslow's  case,  or 
in  any  case  where  the  offense  is  against  the  laws  of  one  of  the  States, 
and  could  not  giveanj'  stii)ulation  or  make  any  arrangement  whatever 
as  to  the  offenses  for  which  he  should  be  tried  when  returned  to  the  jus- 
tice of  the  State  against  whose  laws  he  may  have  offended. 

"But, as  J  have  before  stated,  a  treaty,  dul^'  ratified  and  proclaimed, 
is  in  the  United  States  the  supreme  law  of  the  land,  and  if  the  extradi- 
tion treat}'  did,  as  it  does  not,  provide  that  no  criminal  could  be  tried 
for  any  other  than  certain  particular  offenses,  such  a  provision  would 
be  binding  upon  all  courts,  both  State  and  Federal. 

"  The  absence  of  any  such  provision  from  the  treaty  between  the  Unted 
States  and  Great  Britain  leaves  to  the  State  courts  the  extent  of  juris- 
diction over  returned  criminals,  which  has  been  so  repeatedly  referred 
to  as  recognized  by  the  judicial  decisions  of  the  courts  of  both  countries. 

"  His  lordship  refers  to  the  'late  case  of  Blair,  who  was'  (as  bis  lord- 
ship mildly  expresses  it)  'inveigled  by  a  British  subject,  with  the  as.sist- 
ance  of  American  officers  from  the  United  States,  and  tried  at  Liver- 
pool for  fraudulent  bankruptcy,  and  sentenced  to  imprisonment.'  He 
was  promptly  released  by  the  British  Governmentj  which  sent  him  back 
782 


CHAP.  XI.]  LIMITATION    AS    TO    TRIAL.  [§  270. 

to  tbe  United  States,  paying  his  expenses  back  to  the  place  wlieuco  be 
had  been  brought.  This  prompt  and  generously  just  conduct  of  Her 
Majesty's  Government  is  duly  recognized  and  appreciated  by  the  United 
States. 

"  The  abduction  was,  however,  regarded  by  this  Government  as  a  case 
of  kidnapping;  but  the  power  so  promptly  and  efficiently  exercised  by 
the  British  Government  is  an  evidence  of  the  inherent  power  existing  in 
the  political  department  of  that  Government,  when  it  sees  fit  to  exer- 
cise it,  over  the  person  of  the  individual,  and  iu  control  even  of  the 
judgments  of  the  courts.  Could  not  the  power  thus  summarily  exer- 
cised in  an  act  of  comity,  and  in  consideration  of  a  wrong  committed  in 
a  distant  jurisdiction,  be  also  exercised  in  the  performance  of  a  treaty 
obligation,  and  in  aid  of  the  administration  of  justice  without  being 
hampered  by  the  technicalities  of  a  municipal  act?  Whether  Blair 
personally  desired  to  be  returned  to  the  United  States  is  not  known, 
nor  is  it  supposed  to  be  of  any  consequence.  He  was  deported  and 
sent  out  of  Her  Majesty's  jurisdiction  by  the  political  authorities  of  the 
Government  without  process  of  law,  but  merely  upon  the  reitresentation 
of  the  United  States  of  the  circumstances  attending  his  abduction  or 
inveiglement. 

"  His  lordship  speaks  of  having  been  'assured  of  the  intention  of  the 
United  States  Government  to  try  Lawrence  for  other  than  the -extradi- 
tion crime  for  which  he  was  surrendered.'  Her  IMajesty's  Government 
has  never  been  thus  assured,  and  for  the  very  good  reason  that  the  Gov- 
ernment of  the  United  States  has  never  reached  any  such  conclusion, 
and  has  neither  expressed  nor  formed  any  such  intention.  It  does,  how- 
ever, hold  to  the  opinion  that,  if  thus  inclined,  it  has  the  power  and  the 
right,  after  having  tried  him  on  the  charge  on  which  he  was  surren- 
dered (although  he  may  have  been  surrendered  on  only  one  of  twelve  or 
more  charges  of  which  the  proofs  were  furnished),  with  a  bonafideintQUt 
and  effort  to  convict  him  on  that  one  charge,  to  try  him  for  others  of 
the  many  offenses  of  which  he  has  been  guilty.  It  does  not  conceal,  but 
avows  its  belief  in  this  right.  And  hereupon  Lord  Derby  advances  the 
startling  declaration,  which  I  repeat  iu  his  own  words:  'They'  (Her 
Majesty's  Government)  '  have  always  regarded  the  claim  so  to  try  him 
as  a  breach  of  the  treaty  of  1842.' 

"If  Her  ^lajesty's  Government  seriousl}'  advances  this  as  indicating  a 
mode  whereby,  iu  their  judgment,  a  treaty  may  be  broken,  it  is  as  novel 
as  it  may  prove  to  be  far  reaching.  It  is  simply  the  proposition  that 
the  assertion  by  one  party  to  a  treaty  of  a  claim,  or  of  a  construction  of 
the  instrument  not  admitted  by  the  other,  and  without  any  act  iu  dero- 
gation of  the  convention  or  of  the  rights  of  the  other  party,  constitutes 
of  itself  a  breach  of  the  treaty. 

"i  note  this  assertion,  not  with  a  vi<.'\v  to  discussion,  but  in  the  liopo 
that  so  dangerous  a  doctrine  may  prove  to  have  been  unguardedly  ad- 
vancrcd,  ;iiid  may  not  Ix;  h'ft  uncvidaincd  or  nnav()\v<'d  to  jnslify  Inlurc 

783 


§  270.]  EXTRADITION.  [CHAP.  XT. 

actiou  (from  wLalevcr  quarter)  upou  its  broad  statcineut,  under  which 
treaties  aud  conventions  become  worthless. 

"  While  it  may  not  be  necessary  to  repeat  the  position  of  the  United 
States,  it  is  proper  to  say  that  the  United  States  has  simply  demanded 
the  performance  by  Great  Britain  of  her  treaty  obligation  to  deliver 
fugitives  under  the  treaty  of  18-42,  as  the  same  has  been  in  operation 
for  more  than  thirty  years,  and  insists  that  no  British  statute  can  attach 
a  condition  to  the  treaty  foreign  to  its  terms. 

"  If  any  proceedings  in  the  United  States,  in  the  case  of  any  criminal, 
have  given  rise  to  question  or  complaint,  this  Government  is  prepared 
to  hear  and  properly  dispose  of  any  such  complaint. 

"  But  while  the  treaty  shall  be  in  force,  the  Government  of  the  United 
States  would  be  strangely  forgetful  of  thedignity  and  rights  of  the  coun- 
try if  a  foreign  state  were  permitted  to  exact  stipulations  or  engage- 
ment^ pursuant  to  her  law,  but  foreign  to  the  treaty,  as  a  condition  of 
obtaining  the  performance  of  treatj"  obligations. 

"  It  will  be  a  cause  of  great  regret  that  a  treaty  which  has  worked  so 
long  and  so  benelicially  should  be  terminated  on  such  a  ground ;  but 
the  decision  of  this  question  is  for  the  authorities  of  Great  Britain.  The 
United  States  has  in  due  form,  and  after  complying  with  every  require- 
ment of  the  treaty,  demanded  the  surrender  of  Winslow  and  the  other 
criminals  in  London,  aud  it  is  for  Her  Majesty's  Government  to  decide 
whether  Great  Britain  will  or  will  not  perform  her  treaty  obligations. 

"You  will  read  this  instruction  to  Lord  Derby,  and  in  case  he  desires 
it,  you  will  furnish  him  with  a  copy." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  noffraan,  May  22,  1876.     MSS.  lust.,  Gr.  Brit. ; 
For.  Eel.,  1676. 

'■^  Memoramhim  of  a  conversation  between  Sir  Edicard  Thornton  and  Mr. 
Fish,  at  the  Department  of  State,  Saturday,  May  27,  1876. 

"Sir  Edward  Thornton  read  a  telegram  from  Lord  Derby,  stating  in 
substance  that  Mr.  notlman,  the  United  States  charge  in  London,  had 
suggested  to  him  that  an  additional  article  to  the  treaty  of  1842  might 
be  negotiated,  and  he  (Lord  Derby)  thereupon  proposed  an  article 
simihir  to  the  3d  article  of  the  projet  of  a  treaty  which  was  under  con- 
sideration between  Sir  Edward  Thornton  and  Mr.  Fish  in  June,  1873, 
which  proposed  to  restrict  the  trial  of  a  surrendered  fugitive  to  that  for 
thespecihc  crime  for  which  he  may  have  been  surrendered,  and  to  which 
article  ho  said  Mr.  Fish  had  proposed  an  amendment  prescribing  the 
time  within  which  the  fugitive  might  be  at  large  after  trial  or  discharge, 
before  he  could  be  arrested  lor  trial  on  another  offense,  and  during 
which  he  should  be  at  liberty  to  return  to  the  country  by  which  he  had 
been  surrendered.  That  if  this  proposal  be  accei)ted  by  the  United 
States,  he  (Lord  Derby)  would  sign  the  new  article  in  London  with  Mr. 
Holfman,  or  Sir  Edward  Thornton  would  be  authorized  to  sign  it  here 
with  Mr.  Fish. 

".Mr.  Fish,  in  rei)ly,  exi)ressed  regret  aud  surprise  that  Mr.  Hoffman 
should  have  made  any  suggestion  on  the  subject,  and  assured  Sir  Ed. 
ward  Thornton  that  Mr.  Hoffman  had  no  authority  from  his  Govern. 

784 


CUAP.  XI.]  NON-ENUMERATED    OFFENSES.  [^  270. 

meut  to  make  or  tc  cutertaiu  any  siicli  proposiliou  or  suggestion,  but 
that  be  was  strictly  limited  to  the  conveyance  of  specitic  instructions 
from  Lis  Government  so  far  as  relates  to  any  question  affecting  the  con- 
struction of  the  extradition  treaty  between'tbe  two  Governments,  and 
Mr.  Fisb  requested  Sir  Edward  Tboruton  to  assure  Lord  Derby  to  tbis 
effect.  Mr.  Fisb  added  tbat  be  endeavored  to  give  Mr.  Iloflman  instruc- 
tions on  tbat  particular  question  wbicb  sboukl  be  read  to  Lord  Derby, 
and  not  to  leave  auytbing  for  oral  representation  or  oral  discussion,  in 
order  to  avoid  tbe  possibility  of  any  misapprebeusion  from  telegrams 
or  otber  cause. 

"  Witb  regard  to  tbe  proposition  for  negotiating  an  additional  article 
to  tbe  treaty  of  18i2,  be  remarked  tbat  altbougli  be  migbt  bavc  been 
willing  in  tbe  negotiation  of  1873  to  bavc  inserted  tbe  article  now  pro- 
posed, in  a  treaty,  wbicb  gave  to  tbe  United  States  tbe  improvements 
wbicb  it  desired  in  tbe  treaty  of  1842,  of  a  larger  list  of  extradition 
crimes  and  otber  advantages,  it  could  not  be  expected  tbat  tbe  United 
States  would  now  accept  tbe  limitations  and  restrictions  upon  wbat  it 
bolds  to  be  its  rigbts  under  tbe  treaty  witbout  obtaining  any  of  tbe 
advantages  for  wbicb  sucb  limitations  migbt  bave  been  accepted. 

"  Tbat  tbe  United  States  is  extremely  anxious  to  reacb  a  satisfactory 
settlement  of  tbe  diCQculties  wbicb  bave  been  interposed  in  tbe  execu- 
tion of  tbe  treaty,  but  tbat  tbe  proposed  article  would  impose  upon  tbe 
United  States  tlie  limitation  wbicb  it  denies  to  exist  under  tbe  treaty-, 
and  would  secure  no  one  advantage  wbicb  it  desired,  and  no  improve- 
ment upon  tbe  treaty  of  1842. 

•'  And,  furtber,  tbat  in  view  of  tbe  argument  wbicb  bas  been  advanced 
by  tlie  Britisb  Government,  of  tbe  controlling  force  of  tbe  act  of  Par- 
liament over  all  treaties  or  arrangements  for  extradition  made  by  Her 
Majesty's  Government  subsequent  to  its  enactment,  it  migbt  be  claimed, 
and  ]iossibly  not  witbout  some  force,  tbat  au  article  in  amendment  or 
additional  to  tbe  treaty  of  1842,  would  bring  tbat  treaty  under  tbe 
operation  and  control  of  tbe  act,  Avliicb  tbis  Government  denies  to  be 
tbe  case,  and  cannot  consent  to.  It  would  be  admitting  away  one  of 
tbe  grounds  on  wbicb  tbe  United  States  stands. 

"He  referred  to  wbat  be  considered  defective  features  in  tbe  Britisb 
act  of  1870,  wbicb  be  tbougbt  made  it  unequal  in  its  jjrovisions  as  to  tbe 
Britisb  and  to  tbe  foreign  Governments,  and  as  wanting  in  recit)rocal 
powers  and  rigbts. 

"  He  furtber  said  tbat  be  tbougbt  it  unwise  to  attempt  topatcb  uj)  tlie 
treaty  of  1842;  tbat  tbe  present  would  not  be  a  ])ropitious  moment  for 
sucb  cflbrts;  and  tbatwbenever  anytbing  is  attempted  in  tbe  way  of 
altering  tbat  treaty,  it  would  require  a  more  general  revision,  and  espe- 
cially an  enlargement  of  tbe  list  of  extradition  crimes. 

"■  ^Ir.  Fisb  added  tbat  tbe  United  States  would  not  object  in  any  nego- 
tiation to  be  bereafter  entered  upon,  tbat  a  treaty  sbould  provide  to 
tlie  ell'ect  tbat  a  sunendered  criminal  sball  not  be  tried  for  any  crime 
oi' crimes  other  than  sucb  as  are  of  the  class  enumerated  in  tbe  treaty 
as  extradition  crimes,  nor  be  tried  for  any  political  olfense. 

"In  this  coniict'tion  lu'  referred  to  the  treaty  negotiated  in  1852  be- 
tw<'en  Great  Hiitain  and  I'ranee  (signed  by  Lord  Malmesbury  and  Count 
Walewski),  which  (;ontaine(l  a  provision  to  that  general  ell'ect. 

"And  upon  SirEdward  Thornton  observing  that  the  act  of  1S7()  would 
pr(;vent  the  liritish  Governnient  from  agreeing  to  sui;h  a  stijuilation, 
Ml".  I'ish  ahked  whether  Her  ."Majesty's  (lovernmetit  could  not  obtain 
from  Parliament  a  special  enabling  or  ratilying  act  for  lh«  ])arti('nlar 
treaty  wbicb  might  be  negotiated  between  tlie  two  countries. 

S.  Mis.  102— vor-.  n 50  785 


§  270.]  EXTRADITION.  [CHAr.  XI. 

•'  Mr.  Fish  further  said  that  with  such  provision  in  a  treaty,  aiid  with 
the  simihirity  of  feeling  of  the  two  Governments  and  of  their  people  on 
the  question  of  political  asylum,  a  full  ])rotection  would  be  secured 
against  the  trial  of  a  surrendered  fugitive  for  any  political  ofl'enso  ;  and 
that  the  violation  of  such  jirovision  by  either  of  these  two  Governments 
was  not  within  the  reach  of  contemplation,  but,  should  it  occur,  it  would 
lead  to  the  denunciation  of  the  treaty  by  the  surrendering  state,  which 
would  also  be  at  liberty  to  hold  the  olfending  state  to  its  responsi- 
bilities for  violating  a  treaty  engagement ;  the  treaty  wouhl  be  broken 
by  an  act  in  violation  of  its  terms;  whereas  if  the  state  on  which  the 
denmnd  for  surrender  is  made  decide  that  such  demand,  being  made  (as 
it  must  be)  for  one  of  the  extradition  offenses,  is  really  designed  to  bring 
the  fugitive  to  trial  for  a  i)olitical  offense,  and  refuses  surrender  on  that 
ground,  it  avouUI  be  an  im])utntion  upon  the  good  faith  of  the  request, 
and  upon  the  integrity  of  the  demanding  state,  which  would  justly  give 
rise  to  resentful  feelings,  and  Nvould  equally  lead  to  a  denunciation  of 
the  treaty  by  the  state  whose  requisition  has  been  refused,  and  whose 
honor  and  integrity  has  been  questioned,  and  in  this  case  the  treaty 
would  fail,  not  for  an  act  done,  but  for  the  questioning  of  the  good  faith 
of  one  of  the  parties. 


'[Telograui.] 


"Hamilton  Fish. 
"Edward  Thornton." 


"  London,  June  17,  187C. 


"  Fish,  Washington : 

"  Winslow  discharged  by  Judge  Mellor  in  chambeis.  Judge  Lindley 
refused  to  act  on  Brent's  application;  referred  it  to  court  in  banc  on 
Monday. 

"  Hoffman." 

"[Tolognim.] 

"London,  Jmie  19,  187G. 
"Fish,  Washington: 

"Notified  by  Lord  Derby  that  on  Wiuslow's  discharge  attorney-gen- 
eral stated  present  condition  of  negotiations.  To-day  Brent  discharged, 
attorney-general  confining  himself,  am  informed  b}'  detectives,  to  same 
statement. 

"  Hoffman." 

'■'■  Message  from  the  President  in  relation  to  the  extradition  treaty  ivith  Great 

Britain. 

'■'•To  the  Senate  and  House  of  Ee;presentatives  : 

"By  the  tenth  article  of  the  treaty  between  the  L^nited  States  and  Great 
Britain,  signed  in  Washington  on  the  9th  day  of  August,  1842,  it  was 
agreed  that  the  two  Governments  should,  upon  mutual  requisitions  re- 
si)ectively  made,  deliver  ui)  to  justice  all  persons  who,  being  charged 
with  certain  crimes  therein  enumerated,  committed  witliin  the  jurisdic- 
tion of  either,  should  seek  an  asylum  or  be  found  within  the  territories 
of  the  other. 

"The  only  condition  or  limitation  contained  in  the  treaty  totherecip- 
rocal  obligation  thus  to  deliver  up  the  fugitive  was  that  it  should  be 

786 


CHAP.  XI.]  NON-ENUMERATED    OFFENSES.  [§  270. 

done  only  upon  such  evidence  of  criminality  as,  according  to  the  laws  of 
tbe  place  where  the  fugitive  or  person  so  charged  should  be  found,  would 
justify  his  apprehension  and  commitment  for  trial,  if  the  crime  or  offense 
had  there  been  committed. 

"In  the  month  of  February  last  a  requisition  was  duly  made,  in  pursu- 
ance of  the  provisions  of  the  treaty,  by  this  Government  upon  that  of 
Great  Britain  for  the  surrendei'  of  one  Ezra  D.  Wiuslow,  charged  with 
extensive  forgeries  and  the  utterance  of  forged  paper,  committed  within 
the  jurisdiction  of  the  United  States,  who  had  sought  an  asylum  and 
was  found  within  the  territories  of  Her  Britannic  Majesty,  and  was  ap- 
prehended in  London.  The  evidence  of  the  criminality  of  the  fugitive 
was  duly  furnished  and  heard,  and  being  found  sufficient  to  justify  his 
ajjpreheusion  and  commitment  for  trial,  if  the  crime  had  been  committed 
in  Great  Britain,  he  was  held  and  committed  for  extradition. 

"Her  Majesty's  Government,  however,  did  not  deliver  up  the  fugitive 
in  accordance  with  the  terms  of  the  treaty,  notwithstanding  every  re- 
quirement thereof  had  been  met  on  the  part  of  the  United  States,  but, 
instead  of  surrendering  the  fugitive,  demanded  certain  assurances  or 
stipulations  not  mentioned  in  the  treaty,  but  foreign  to  its  provisions, 
as  a  condition  of  the  pierformance  by  Great  Britain  of  her  obligations 
under  the  treaty. 

"In  a  recent  communication  to  the  House  of  Kepresentatives,  and  in 
answer  to  a  call  from  that  body  for  information  on  this  case,  I  submitted 
the  correspondence  which  has  passed  between  the  two  Governments 
with  reference  thereto.  It  will  be  found  in  Executive  Document  No. 
173  of  the  House  of  Eepresentatives  of  the  present  session,  and  I  re- 
spectfully refer  thereto  for  more  detailed  information  bearing  on  the 
question. 

"It  appears  from  the  correspondence  that  the  British  Government 
bases  its  refusal  to  surrender  the  fugitive  and  its  demand  for  stipula- 
tions or  assurances  from  this  Government  on  the  requirements  of  a 
purely  domestic  enactment  of  the  British  Parliament  passed  in  the 
year  1870. 

"This  act  was  brought  to  the  notice  of  this  Government  shortly  after 
its  enactment,  and  Her  Majesty's  Government  was  advised  that  the 
United  States  understood  it  as  giving  continued  effect  to  the  existing 
engagements  under  the  treaty  of  18413  for  the  extradition  of  criminals; 
and,  with  this  knowledge  on  its  i)art  and  without  dissent  from  the  de- 
clared views  of  the  United  States  as  to  the  unchanged  nature  of  the 
reciprocal  rights  and  obligations  of  tlie  two  powers  under  the  treaty, 
Great  Britain  has  continued  to  make  requisitions  and  to  grant  surren- 
ders in  numerous  instances  without  suggestion  that  it  wascontemi)lated 
to  depart  from  the  practice  under  the  treaty  which  has  obtained  for 
n)ore  than  thirty  years,  until  now,  for  the  tirst  tinu',  iu  this  case  of 
Wiuslow,  it  is  assumed  that  innicr  this  act  of  I*arliament  Her  ]\Iiijesty 
may  requii-e  a  stipiilal  ion  or  a^'icciiH'iit   not  provided  for  in  the  treaty 

787 


§  270.]  EXTRADITION.  [CIIAP.  XI. 

as  a  coudition  to  tlic  observance  by  her  Goveniinent  of  its  treaty-oblij,'ii- 
tious  toward  this  country. 

"This  I  have  felt  it  my  duty  emphatically  to  repel. 

"In  addition  to  the  case  of  Wiuslow,  requisition  was  also  made  by  this 
Government  on  that  of  Great  Britain  for  the  surrender  of  Charles  J. 
Brent,  also  charged  with  forgery  committed  in  the  United  States  and 
found  in  Great  Britain.  The  evidence  of  criminality  was  duly  heard 
and  the  fugitive  committed  for  extradition. 

"A  similar  stipulation  to  that  demanded  in  Winslow's  case  was  also 
asked  in  Brent's,  and  was  likewise  refused. 

"It  is  with  extreme  regret  that  I  am  now  called  upon  to  announce  to 
you  that  Her  ^Majesty's  Government  has  finally  released  both  of  these 
fugitives,  Winslow  and  Brent,  and  set  them  at  liberty,  thus  omitting  to 
comply  with  the  provisions  and  reqniremeutsof  the  treaty  under  which 
the  extradition  of  fugitive  criminals  is  made  between  the  two  Govern- 
ments. 

"The  position  thus  taken  by  the  British  Government,  if  adhered  to, 
cannot  but  be  regarded  as  the  abrogation  and  annulment  of  the  article 
of  the  treaty  on  extradition. 

"Under  these  circumstances  it  will  not,  in  my  judgment,  comport  with 
the  dignity  or  self-respect  of  this  Government  to  make  demands  upon 
that  Government  for  the  surrender  of  fugitive  criminals,  nor  to  entertain 
any  requisition  of  that  character  from  that  Government  under  the  treaty. 

"It  will  be  a  cause  of  deep  regret  if  a  treaty  which  has  been  thus 
beneficial  in  its  practical  operation,  which  has  worked  so  well  and  so 
eflaciently,  and  which,  notwithstanding  the  exciting  and  at  times  violent 
political  disturbances  of  which  both  coul' tries  have  been  the  scene  dur- 
ing its  existence,  has  given  rise  to  no  complaints  on  the  part  of  either 
Government  against  either  its  spirit  or  its  provisions,  should  be  abruptly 
terminated. 

"  It  has  tended  to  the  protection  of  society  and  to  the  general  interests 
of  both  countries.  Its  viohition  or  annulment  would  be  a  retrograde 
step  in  international  intercourse. 

"1  have  been  anxious  and  have  made  the  effort  to  enlarge  its  scope, 
and  to  make  a  new  treaty  which  would  be  a  still  more  efltlcient  agent 
for  the  punishment  and  prevention  of  crime.  At  the  same  time  I  have 
felt  it  my  duty  to  decline  to  entertain  a  proposition  made  by  Great 
Britain,  pending  its  refusal  to  execute  the  existing  treaty,  to  amend  it 
by  practically  conceding  by  treaty  the  identical  conditions  whic-h  that 
Government  demands  under  its  act  of  Parliament.  In  addition  to  the 
impossibility  of  tlie  United  States  entering  upon  negotiations  under  the 
menace  of  an  intended  violation  or  a  refusal  to  execute  the  terms  of  an 
existing  treaty,  I  deemed  it  unadvisable  to  treat  of  only  the  one  amend- 
ment proposed  Uy  Great  Britain  while  the  United  States  desires  an  en- 
largement of  the  list  of  crimes  for  which  extradition  may  be  asked,  and 
788 


CHAP.  XI.]  NON-ENUMERATED    OFFENSES.  [§  270. 

otber  iuiprovemcnts  wliicli  experience  has  shown  ini^lit  bo  embodied  in 
a  new  treaty. 

"  It  is  for  the  wisdom  of  Congress  to  determine  whether  the  article  of 
the  treaty  rehiting  to  extradition  is  to  be  any  longer  regarded  as  oblig- 
atory on  the  GoYernmeut  of  the  United  States  or  as  forming  part  of  the 
supreme  law  of  the  land.  Should  the  attitude  of  the  British  Govern- 
ment remain  unchanged,  I  shall  not,  without  an  expression  of  the  wish 
of  Congress  that  I  should  do  so,  take  any  action  6ither  in  making  or 
granting  requisitions  for  the  surrender  of  fugitive  criminals  under  the 
treaty  of  1842, 

''Respectfullv  submitted. 

"XJ.  S.  Grant. 
"  WAsniNGTON,  June  20,  187G." 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  13th 
instant,  informing  me,  at  the  request  of  the  governor-general  of  Canada, 
that  one  Charles  P.  Jones  was  committed  to  jail  at  Hamilton,  Ontario, 
upon  the  30th  ultimo,  as  a  fugitive  from  the  justice  of  the  United  States, 
but,  as  no  application  for  his  surrender  under  the  extradition  article  of 
the  treaty  of  1812  had  reached  the  Canadian  Government,  he  would  be 
entitled  to  his  discharge  at  the  expiration  of  two  months  from  his  com- 
mitment. 

"The  governor  of  the  State  of  Ohio  some  time  since  addressed  me, 
requesting  an  application  in  the  usual  form  for  the  delivery  of  Jones 
under  the  treaty,  bu  t  it  was  not  deemed  proper  to  prefer  such  applica- 
tion, for  the  reason  stated  in  my  note  of  the  17th  May  in  reference  to 
the  case  of  Maraiue  Smith. 

"  Since  the  date  of  that  note  the  case  of  Winslow  has  been  disposed 
of  by  a  refusal  to  surrender  him,  and  by  his  discharge  from  custody. 
Thereupon,  and  on  the  20th  ultimo,  the  President  communicated  to  Con- 
gress the  reasons  which  in  his  opinion  made  it  impossible  to  prefer  fur- 
ther demands  for  the  surrender  of  fugitive  criminals  under  the  10th 
article  of  the  treaty  of  1812. 

"  I  have  the  honor  to  inclose  a  copy  of  this  message,  which  will  ex- 
plain the  position  which  the  President  has  felt  constrained  to  adopt,  and 
the  reasons  why  a  request  for  the  surrender  of  Jones  has  not  been  pre- 
ferred. 

"  In  bringing  these  reasons  to  the  liuowledge  of  the  governor-general 
of  Canada,  I  will  thank  you  to  express  to  him  my  api)reciation  of  his 
courtesy  in  the  matter." 

Mr.  Fish,  Sec.  of  State,  to  Sir  Edw.-inl  Tlinnildii,  July  18,  187().     MSS.  Notes, 
Gr.  Brit. ;  For.  Rcl.,  187G. 

"Subsequent  to  the  date  of  the  instruction  to  Mr.  Ilollinaii  of  the  22(1 
]May,  and  prior  to  tiie  date  of  his  lordship's  reply,  llcr  .'\Iaj('sly\s  Gov- 
iTument  had  discharge<l  from  custody  the  fugitives  wliosc^  surrender 
had  been  deiiKUMb^l  of  Great  Britain  by  the  United  States,  with  all  tlio 

789 


§  270,]  EXTRADITION.  [CHAP.  XI. 

requirements  of  the  treaty  between  tbe  two  Goveruments  providing  for 
the  extradition  of  fugitive  criminals.  This  act  of  Iler  Majesty's  Gov- 
ernment called  for  the  decision  of  the  President  of  the  United  States, 
which  was  announced  in  his  message  to  Congress  of  the  20th  of  June 
last,  of  which  you  have  been  given  a  cojiy,  wherein  he  stated  that  the 
position  thus  taken  by  the  British  Government,  if  adhered  to,  cannot 
but  be  regarded  as  the  abrogation  and  annulment  of  the  article  of  the 
treaty  on  extradition  j  that,  under  the  circumstances,  it  would  not,  in 
his  judgment,  comport  with  the  dignity  or  self-respect  of  this  Govern- 
ment to  make  demands  upon  that  Government  for  the  surrender  of  fugi- 
tive criminals,  nor  to  entertain  any  requisition  of  that  character  from 
that  Government  under  the  treaty.  The  general  question  has  therefore, 
for  the  present  at  least,  and  while  the  British  Government  adheres  to 
the  position  it  has  taken,  become  an  abstract  one,  and  this  Government 
has  no  desire,  under  such  circumstances,  to  prolong  a  discussion  which 
does  not  promise  to  lead  to  any  good  result. 

"I  deem  it  proper,  however,  to  correct  an  error  of  fact  into  which  his 
lordship  appears  to  have  fallen. 

"  In  my  instruction  of  the  24:th  of  May,  alluding  to  a  statement  of  the 
home  secretary  that  no  question  had  been  raised  by  him  until  he  was 
satisfied  that  Lawrence  had  been  indicted,  though  not  arraigned,  for 
smuggling,  I  stated  that  the  indictment  against  Lawrence  for  smuggling 
was  found  some  time  before  any  proceedings  were  taken  for  his  extra- 
dition. In  reply  thereto  Lord  Derby  now  states,  '  this  may  be  so,  but 
Lawrence  was  arrested  and  held  to  bail  on  this  indictment  for  smug- 
gling after  his  extradition.' 

"After  a  careful  examination  of  the  question,  and  upon  the  authority 
of  a  report  from  the  officer  particularly  charged  with  the  prosecution  of 
Lawrence,  which  entirely  agrees  with  the  information  in  the  possession 
of  the  Department  of  State,  it  may  be  stated  that  since  Lawrence  ar- 
rived in  the  United  States  in  custody  upon  the  i^roceedings  taken  in 
London  for  his  extradition,  he  has  not  been  arrested,  has  not  given  bail, 
and  has  not  been  arraigned  or  called  upon  to  plead  to  the  charge  of 
smuggling,  nor  has  he  been  arrested,  arraigned,  or  called  upon  to  plead 
to  any  indictment,  or  to  any  charge  whatever,  not  based  upon  the  par- 
ticular charge  of  forgery,  upon  which  he  was  surrendered. 

"  Bail  was  fixed  by  the  court  upon  a  single  indictment  based  on  the 
forgery  on  which  he  was  extradited,  which  was  never  offered,  and  to 
this  indictment,  based  on  this  forgery,  Lawrence  pleaded  guilty  on  the 
24th  of  June. 

"  This  plea  being  entered,  he  was  admitted  to  bail,  and  has  since  been 
at  large  pending  sentence. 

"  Some  error  has  also  arisen  in  reference  to  the  statement  that  I  in- 
formed Sir  Edward  Thornton  that  although  Lawrence  had  not  been  ar- 
raigned for  any  crime  other  than  that  for  which  he  was  given  up,  he 
had  given  bail  to  appear  for  other  crimes. 
700 


CHAP.  XI.]  NON-ENDMERATED  OFFENSES.  [§  270. 

''The  accoiuplisbed  minister  of  Great  Britain  must  Lave  misunder- 
stood what  was  said  on  this  point,  as  Lawrence,  prior  to  his  plea  of 
guilty  on  the  charge  for  which  he  was  surrendered,  and  at  the  date 
of  the  alleged  conversation,  had  never  given  bail  upon  any  charge 
whatever. 

"  Believing  it  important  that  no  mistake  of  fact  should  exist  as  to 
these  proceedings,  you  will,  with  Lord  Derby's  permission,  leave  with 
him  a  copy  of  this  instruction." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Piorrcpoiit,  Aug.  5,  1876.    MSS.  Inst.,  Gr.Brit.; 
For.  Rel.,187G. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the 
27th  instant,  wherein  you  inform  me  that  you  have  received  instructions 
from  Lord  Derby  to  state  that  Her  Majesty's  Government  will  be  pre- 
pared, as  a  temiiorary  measure  until  a  new  extradition  treaty  can  be  con- 
cluded, to  put  in  force  all  powers  vested  in  it  for  the  surrender  of  accused 
persons  to  the  Government  of  the  United  States  under  the  treaty  of  1842, 
without  asking  for  any  engagement  as  to  such  persons  not  being  tried 
in  the  United  States  for  other  than  the  offenses  for  which  extradition 
has  been  demanded. 

"Your  note  also  calls  attention  to  the  i^rovision  laid  down  in  the 
eleventh  article  of  the  treaty  of  1842,  that  the  tenth  article  shall  con- 
tinue in  force  until  one  or  the  other  of  the  parties  shall  signify  its  wish 
to  terminate  it,  and  no  longer. 

"  I  have  laid  your  note  before  the  President,  who  observes  with  great 
satisfaction  that  Her  Majesty's  Government  has  decided  to  use  its  powers 
for  the  surrender  of  fugitive  criminals  without  asking  any  stipulations 
or  engagements  in  the  nature  of  those  which,  in  recent  correspondence 
with  reference  to  the  requisition  made  by  the  United  States  in  the  case 
of  Winslow  and  others,  had  compelled  him,  with  extreme  regret  and 
reluctance,  to  reach  the  conclusion  that  under  the  position  then  taken 
by  the  British  Government,  if  it  be  adhered  to,  it  would  not  be  possi- 
ble for  the  Government  of  the  United  States  either  to  make  demands 
on  Her  Majesty's  Government  for  the  surrender  of  fugitive  criminals 
or  to  entertain  requisitions  of  that  character  from  Her  i\Lijesty's  Gov- 
ernment under  the  treaty. 

"The  President  concurs  fully  with  Her  Majesty's  Government  in  its 
appreciation  of  the  very  serious  inconvenience  and  the  great  encourage- 
ment to  crime  arising  from  the  failure  of  the  extradition  of  criminals 
between  two  states  whose  relations  of  business  and  of  social  intercourse 
are  as  close  and  as  intimate  as  those  which  happily  exist  between  the 
United  States  and  Her  Jlajesty's  dominions,  and  he  greets  the  decision 
of  Her  Majesty's  Government,  announced  in  your  note  to  ask  no  engage- 
ment with  regard  to  the  trial  of  persons  surrendered,  as  the  removal  of 
the  obstacle  which  arrested  the  execution  and  efliciency  of  the  extradi- 
tion article  of  the  ticatv  of  1842. 

791 


§  270.]  EXTRADITION.  [CUAP.  XI. 

"  He  hopes,  thcreroit',  that  iler  Majesty's  Goveiument  \Yill  uow  take 
into  consideration  the  applications  lieretolore  made  by  the  United 
States  for  the  surrender  of  Winslow  and  Brent  and  Gray,  with  regard 
to  each  of  -whom  the  evidence  of  criminality  has  been  duly  furnished 
and  heard,  and  was  found  sullicient  to  justify  his  ajiprehension  and 
commitment  for  trial  in  accordance  with  thercquiremcntsof  the  treaty. 
On  an  indication  of  readiness  to  surrender  those  persons,  he  will  au- 
thorize an  agent  to  receive  tliem,  and  will  be  ready  and  glad  to  respond 
to  any  requisitions  which  may  be  made  on  the  part  of  ller  IMajesty's 
Government  under  the  tenth  article  of  the  treaty  of  1842,  which  he 
will  then  regard  as  in  full  force  until  such  time  as  either  Government 
shall  avail  itself  of  the  right  to  terminate  it  provided  by  the  eleventh 
article,  or  until  a  more  comprehensive  arrangement  can  be  reached 
between  the  two  Governments  in  regard  to  the  extradition  of  crimi- 
nals, an  object  to  which  he  will  be  glad  to  give  the  attention  of  this 
Government,  with  his  most  earnest  desire  for  a  mutually  satisfactory 
result." 

Mr.  Fish,  Sec.  of  State,  to  Sir  E.  TliorntoH,  Oct.  30,  187G.     MSS.  Notes,  Gr. 
Brit. ;  For.  Eel.,  187G. 

"  Message  from  the  FreskJcnt,  {rausmitting  documents  relative  to  the  execu- 
tion of  the  extradition  article  of  the  treaty  of  1842  hetwcen  the  United 
States  and  Great  Britain. 

"  To  the  Senate  : 

"  When  Congress  adjourned  in  August  last  the  execution  of  the  extra- 
dition article  of  the  treaty  of  1842  between  the  United  States  and  Great 
Britain  had  been  interrupted. 

"The  United  States  had  demanded  of  Iler  Majesty's  Government  the 
surrender  of  certain  fugitives  from  justice,  charged  witli  crimes  com- 
mitted within  the  jurisdiction  of  the  United  States,  who  had  sought 
asylum  and  were  found  within  the  territories  of  Her  Britannic  Majesty, 
and  had,  in  due  compliance  with  the  requirements  of  the  treaty,  fur- 
uished  the  evidence  of  the  criminality  of  the  fugitives,  which  had  been 
found  suflicient  to  justify  their  apprehension  and  commitment  for  trial, 
as  required  by  the  treaty,  and  the  fugitives  were  held  and  committed 
for  extradition. 

"Her  Majesty's  Government,  however,  demanded  from  the  United 
States  certain  assurances  or  stipulations  as  a  condition  for  the  surrender 
of  these  fugitives. 

"As  the  treaty  contemplated  no  such  conditions  to  the  i)erformance 
of  the  obligations  which  each  Government  had  assumed,  the  demand 
for  stipulations  on  the  part  of  this  Government  was  repelled. 

"  Her  Majesty's  Government  thereupon,  in  June  last,  released  two  of 
the  fugitives  (Ezra  D.  Winslow  and  Charles  I.  Brent),  and  subsequently 
released  a  third  (one  William  E.  Gray),  and  refusing  to  surrender,  set 
them  at  liberty, 
792 


CHAP.  XI.]  NON-ENUMERATED    OFFENSES.  [§  270. 

"  lu  a  message  to  the  two  bouses  of  Congress  on  the  20tU  day  of  Juno 
last,  in  view  of  the  condition  of  facts  as  above  referred  to,  I  said: 

"  '  The  position  thus  taken  by  the  British  Govcruuient,  if  adhered  to,  cannot  but  be 
regarded  as  the  abrogation  and  annulment  of  the  article  of  the  treaty  on  extradition. 
Under  these  circumstances  it  will  not,  in  my  judgment,  comport  with  tlie  dignity  or 
self-respect  of  this  Government  to  make  demands  upou  that  Government  for  the  sur- 
render of  fugitive  criminals,  nor  to  entertain  any  requisition  of  that  character  from 
that  Government  under  the  treaty.' 

"Article  XI  of  tbe  treaty  of  1842  provided  tbat— 

"  'The  tenth  article  (that  relating  to  extradition)  should  coniinnc  in  force  until  one 
or  the  other  of  the  parties  should  signify  its  wish  to  terminate  it,  and  no  longer.' 

"In  view,  bowever,  of  tbe  great  importance  of  an  extradition  treaty, 
especially  between  two  states  as  intimately  connected  in  commercial  and 
social  relations  as  are  tbe  United  States  and  Great  Britain,  and  in  tbe 
bope  tbat  Her  Majesty's  Government  migbt  yet  reacb  a  ditterent  de- 
cision from  tbat  tben  attained,  I  abstained  from  recommending  any 
action  by  Congress  terminating  tbe  extradition  article  of  tbe  treaty.  I 
bave,  bowever,  declined  to  take  any  steps  under  tbe  treaty  toward 
extradition. 

"It  is  witb  great  satisfaction  tbat  I  am  able  now  to  announce  to  Con- 
gress and  to  tbe  country  tbat  by  tbe  voluntary  act  of  ller  Majesty's  Gov- 
ernment the  obstacles  wbicli  bad  been  interj)osed  to  tbo  execution  of  tbe 
extradition  article  of  tbe  treaty  bave  been  removed. 

"  Un  tbe  27tb  of  October  last.  Her  Majesty's  representative  at  this  cap- 
ital, under  instructions  from  Lord  Derby,  informed  tbis  Government 
tbat  Her  Majesty's  Government  would  be  prepared,  as  a  temporary 
measure,  until  a  new  extradition  treaty  can  be  concluded,  to  put  in  force 
all  powers  vested  in  it  for  tbe  surrender  of  accused  persons  to  tbe  Gov- 
ernment of  tbe  United  State.?,  under  tbe  treaty  of  184:2,  witbout  asking 
for  ajiy  engagement  as  to  sucb  persons  not  being  tried  in  tbe  United 
States  for  otber  tban  tbe  ofl'enses  for  wbicb  extradition  bad  been  de- 
manded. 

"  I  was  bappy  to  greet  tbis  announcement  as  tbe  removal  of  tbe  obsta- 
cles wbicb  bad  arrested  the  execution  of  tbe  extradition  treaty  between 
tbe  two  countries. 

"  In  rei)l3'  to  tbe  note  of  Her  Majesty's  representative,  after  referring 
to  tbe  aj)plications  beretofore  made  by  tbe  United  States  for  tbe  surren- 
der of  tbe  fugitives  referred  to  iu  tbe  correspondence  wbicb  was  laid 
before  Congress  at  its  last  session,  it  was  stated  tbat  on  an  indication 
of  readiness  to  surrender  tbese  persons,  an  agent  would  be  authorized 
to  receive  them,  and  I  would  be  ready  to  respond  to  requisitions  which 
maybe  made  on  tbe  i)artof  Iler  Majesty's  Government  under  the  tenth 
article  of  the  treaty  of  1812,  which  I  would  then  regard  as  in  full  force 
until  sucb  time  as  either  Government  shall  avail  itself  of  tbe  light  to 
terminate  it  provided  by  the  eleventh  article,  or  until  a  more  <;onipre- 
hcnsjxc  iiiiangement  can  be  rcMchcd  Ix^tween  lh(^  two  Govcrnnicnts  in 

793 


§  270.]  EXTRADITION.  [CRAP.  XI. 

iciiaixl  to  tlio  exlnulitionof  criiuinals — an  object  to  which  the  atteiitiou 
of  this  Government  would  gladly  bo  given,  with  an  earnest  desire  for  a 
mutually  satisfactory  result. 

"A  copy  of  the  correspondence  between  Iler  Majesty's  representative 
at  this  capital  and  the  Secretary  of  State  on  the  subject  is  transmitted 
herewith. 

"It  is  with  great  satisfaction  that  I  have  now  to  announce  that  Her 
Majesty's  Government,  while  expressing  its  desire  not  to  be  understood 
to  recede  from  the  interpretation  which,  in  its  i)revions  correspondence 
it  has  put  upon  the  treaty,  but  having  regard  to  the  prospect  of  a  new 
treaty,  and  the  power  possessed  by  either  party  of  spontaneously  de- 
nouncing the  old  one,  caused  the  rearrest  on  the  4th  instant  of  Brent, 
one  of  the  fugitives  who  had  been  previously  discharged ;  and,  after 
awaiting  the  requisite  time  within  which  the  fugitive  is  entitled  to  ap- 
peal or  to  apply  for  his  discharge,  on  the  21st  instant,  surrendered  him 
to  the  agent  appointed  on  behalf  of  this  Government  to  receive  and  to 
convey  him  to  the  United  States. 

"Her  Majesty's  Government  has  expressed  an  earnest  desire  to  rear- 
rest and  to  deliver  up  Winslow  and  Gray,  the  other  fugitives  who  had 
been  arrested  and  committed  on  the  requisition  of  the  United  States, 
but  were  released  because  of  the  refusal  of  the  United  States  to  give 
the  assurances  and  stipulations  then  required  by  Great  Britain.  These 
persons,  however,  are  believed  to  have  escaped  from  British  jurisdic- 
tion ;  a  diligent  search  has  failed  to  discover  them. 

"  As  the  surrender  of  Brent,  without  condition  or  stipulation  of  any 
kind  being  asked,  removes  the  obstacle  which  interrupted  the  execution 
of  the  treaty,  I  shall  no  longer  abstain  from  making  demands  upon  Her 
Majesty's  Government  for  the  surrender  of  fugitive  criminals,  nor  from 
entertaining  requisitions  of  that  character  from  that  Government  under 
the  treaty  of  1842,  but  will  again  regard  the  treaty  as  operative,  hoping 
to.be  able  before  long  to  conclude  with  her  Majesty's  Government  a  new 
treaty  of  a  broader  and  more  comprehensive  nature. 

"U.  S.  Grant. 

"  Washington,  Dccemher  23,  187G." 

"  Lint  of  papers  iransmiiled  io  the  Senate  uith  the  foregoing  message. 

"  Sir  Edward  Tliorntou  to  Mr.  Fisli,  May  13,  1876. 

"  Mr.  FisTi  to  Sir  Edward  Thornton,  Maj-  17,  1876. 

"Sir  Edward  Thornton  to  Mr.  Fish,  May  23,  1876. 

"  Sir  Edward  Thornton  to  Mr.  Fish,  May  26,  1876. 

"  Sir  Edward  Thornton  to  Mr.  Fish,  July  13,  1876. 

"  Mr.  Fish  to  Sir  Edward  Thornton,  July  18,  1876. 

"Sir  Edward  Thornton  to  Mr.  Fish,  October  27,1876. 

"Mr.  Fish  to  Sir  Edward  Thornton,  October  30,  1876. 

"Mr.  Fish  to  Mr.  Pierrepont  (telegram),  November  1,  1876. 

"Mr.  Fish  to  Mr.  Pierrepont  (telegram),  November  24,  1876. 

"Sir  Edward  Thornton  to  Mr.  Fish,  November  29,  1876. 

794 


CHAP.  XI.]  NON-ENUMERATED  OFFENSES.  [§  270, 

"  Mr.  Pierrepout  to  Mr.  Fisb  (tolesram),  November  30j  187G. 
"Mr.  Pierrepont  to  Mr.  Fisb,  November  30,  187G. 
"Mr.  Pierrepont  to  Mr.  Fisb  (telegram),  December  4,  18TG. 
"Mr.  Fisb  to  Mr.  Pierrepont,  December  5,  187G. 
"Mr.  Pierrepont  to  Mr.  Fisb  (telegram),  December  23,  1876. 
"Mr.  Fisb  to  Sir  Edward  Tborutou,  December  23,  1876." 
For.  Eel.  1877. 

On  December  23, 1876,  Mr.  Fisb,  in  a  note  to  Sir  E.  Tborutou,  stated 
tbat,  as  tbe  Britisb  Government  bad  ordered  tbe  arrest  for  tbe  purpose 
of  surrrender  of  certain  fugitives  from  the  United  iStates,  "tbe  Presi- 
dent will  be  now  ready  to  respond  to  any  requisitions  which  may  be 
made  on  tbe  part  of  Her  Majesty's  Governuient,  under  the  lOtb  article 
of  tbe  treaty  of  1842,"  etc. 

"Upon  tbe  receipt  of  your  telegram  of  tbe  23d  instant,  stating  tbat 
Brent,  having  been  delivered  up,  bad  sailed  from  Liverpool  in  tbe 
steamer  Partbia,  a  note  was  addressed  to  Sir  Edward  Thornton,  inform- 
ing bim  of  tbe  fact  of  tbe  surrender  of  tbe  fugitive,  and  bis  departure 
for  tbe  United  States,  as  well  as  tbat  Winslow  and  Gray,  for  whom 
warrants  bad  been  issued,  could  net  be  found,  and  stating  tbat  tbe 
President  would  now  be  ready  to  respond  to  any  requisitions  preferred 
by  Her  Majesty's  Government,  and  would  hereafter  make  similar  requi- 
sitions under  the  treaty,  and  regard  tbe  treaty  as  in  full  force,  subject 
to  tbe  right  reserved  to  either  partj'  to  terminate  the  same  pursuant  to 
tbe  eleventh  article  thereof.  I  informed  you  immediately  of  tbe  sub- 
stance of  tbe  note  by  telegraph,  on  its  transmission  on  the  23d. 

"A  copy  of  tbe  note  in  question  and  of  Sir  Edward's  reply  thereto  is 
herewith  inclosed. 

"At  the  same  time  a  note  was  addressed  to  tbe  Britisb  representative 
with  reference  to  Maraine  Smith,  wbo  has  been  held  for  a  long  time,  as 
you  know,  and  requesting  bis  surrender.     *     *     * 

"Upon  tbe  2Ctb  the  Britisb  minister  himself  addressed  the  Depart- 
ment, asking  tbat  a  warrant  might  be  issued  for  the  arrest  and  deten- 
tion of  one  Alfred  Brush,  a  fugitive  from  the  justice  of  Canada,  with  a 
view  to  bis  extradition,  and  a  warrant  or  mandate  from  this  Depart- 
ment was  issued  tbe  same  daj'. 

"Extradition  appears  therefore  to  have  been  fairly  re-established  be- 
tween tbe  two  countries  under  tbe  tenth  article  of  tbe  treaty  of  1812. 

"Tbe  President  transmitted  to  ('ongress  upon  the  2Gth  instant  a 
si)ecial  message  with  reference  to  extradition,  accompanied  by  copies 
of  the  late  correspondence  on  tbe  subject.  As  soon  as  printed  copies 
are  obtained  of  tbe  correspondence  and  message,  coi)ies  shall  bo 
transmitted. 

"The  President  reviews  tlie  question,  and  announces  that  ho  will 
licreafter  entertain  and  make  requisitions  for  tbe  surrender  of  fugitive 
criminals." 

Mr.  Cadwiilader,  Acting  .Sec.  oi  .Slate,  lu  Mr.  I'ierrcpont,  Dec.  27,  187G.     MSS. 
Inst.,  Gr.  IJrit. ;  For.  Re].,  1876. 

795 


§  270.]  EXTRADITION.  [CIIAP.  Xl. 

lu  a  letter  from  Mr.  Fisli,  Secretary  of  State,  to  Mr.  Cameron,  eliair- 
man  of  Senate  Committee  of  Foreijin  Ixelations,  February  7,  1877,  it  is 
asserted  that  "tlie  riplit  to  try  a  surrendered  criminal  for  other  than 
the  crimes  for  whicli  his  extradition  has  been  obtained  has  been  very 
positively  asserted  by  this  Government,  and,  as  is  believed,  is  now  uni- 
versally conceded,  unless  it  be  limited  by  the  terms  of  the  treaty."  Uut 
the  same  letter  i)roceeds  to  argue  in  favor  of  a  treaty  limitation  on  the 
ground  that  many  oflenses  are  punishable  in  Spain  {c.p.,  those  relating 
to  religious  Avorship)  -sNhich  would  not  be  ])uiiishable  in  the  Unitecl 
States.  (:\ISS.  Ix'eport  Book  No.  12)  And  the  predicate  "  universally 
conceded"  can  only  be  understood,  in  this  view,  as  referring  to  "right" 
in  the  sense  of  "  power."  That  it  is  morally  right,  after  obtaining  a 
rendition  of  a  fugitive  for  a  treaty  crime,  to  try  him  for  a  non  treaty 
crime,  so  far  from  being  generally  conceded,  is  generally  contested,  and 
the  wrongfulness  of  such  a  course  is  implied  in  Mr.  Fish's  suggestions 
as  given  above  of  future  treaty  limitations. 

This  coutroversy  is  discnssccl  in  2  Calvo  droit  int.  cd.  (:{d),  :5i)9. 

"During  the  correspondence  on  this  subject  with  Great  Britain,  the 
United  States  maintained  that  the  treaty  and  the  practice  between  the 
two  countries  would  allow  the  prosecution  for  an  oflense  distinct  from 
that  for  which  he  was  surrendered.  At  the  same  time  the  Government 
has  admitted  that  the  proceeding  must  not  be  a  mere  pretense  to  ob- 
tain possession  of  the  prisoner,  and  in  the  case  of  Lawrence,  who  was 
being  proceeded  against  in  the  Federal  court,  the  President  directed 
that  he  should  first  be  placed  on  trial  for  the  particular  offense  with 
which  he  was  charged,  with  a  hona  fide  effort  to  convict  him  of  this 
offense  before  any  question  of  further  prosecution  was  considered." 

Mr.  FisL,  Sec.  of  State,  to  Mr.  McCrcery,  Mar.  7,  1&77.     MSS.  Doni.  Let. 

"Fugitives  when  surrendered  to  justice  without  more  being  said, are 
surrendered  thereto,  generally,  absolutely  and  simply." 

Opinion  of  Mr.  Pbillixjs,  Soh'citor  Goueral,  15  Op.,  500,  adopted  by  Jlr.  Freliiig- 
liuysen.  Sec.  of  State,  in  letter  to  Mr.  Brcw-'^ter,  Kov.  ^1,  1882.  MSS.  Doni. 
Let. 

"Ill  1875,  the  dispute  concerning  Lawrence,  the  forger,  arose.  Law- 
rence's extradition  had  been  demanded  ou  a  dozen  distinct  counts  of 
forgery,  and  he  had  been  surrendered  on  one  count  alone.  The  charge 
on  that  count  proving  defective,  the  A^aw  York  court  i)roceedcd  to  take 
up  the  other  counts  for  the  same  offense.  Her  Majesty's  Government 
demanded  that,  according  to  the  act  of  1870,  assurance  should  be  given 
that  Lawrence  should  not  be  tried  for  any  other  than  the  extradition 
crime,  proved  by  the  facts  on  which  the  surrender  was  grounded.  This 
a.^surance  could  not  be  given.  As  a  result,  the  operation  of  the  extra- 
dition article  was  for  a  time  su.spended,  and  justice  failed  in  several 
cases,  to  the  manifest  inconvenience  of  both  countries.  The  situation 
so  created  became  at  last  intolerable,  and  the  dispute  was  ended  by  the 
tacit  admi.ssion  on  the  part  of  Her  Majesty's  Government  that  the 
domestic  act  of  one  of  the  parties  should  not  control  an  international 
790 


CHAP.  XI.]  NON-ENUMERATED    OFFENSES.  [§270. 

compact  made  before  its  passage.  Au  agreement  was  entered  into  that 
the  teutli  article  of  the  treaty  of  1842  should  continue  effective  between 
the  two  Governments,  according  to  its  terms,  until  replaced  by  a  new 
treaty.  The  British  declaration  to  this  effect  appears  in  a  note  addressed 
by  Sir  Edward  Thornton  to  Mr.  Fish,  under  date  of  October  27,  187G, 
since  when  no  dispute  has  occurred." 

Mr.   FreliDgliiiysen,   Sec.   of  State,  to  Mr.  Lowell,  July  15,  1831.     MSS.  Inst., 
Gr.  Brit. 

L.,  a  naturalized  citizen  of  the  United  States,  was  arrested  in  Ireland 
at  the  instance  of  this  Government,  and  extradited,  under  the  treaty 
with  Great  Britain  of  1812,  upon  a  charge  of  forgery.  The  extradition 
proceedings  occurred  in  1875,  under  the  British  act  of  1870.  Upon  being 
brought  back  to  this  country  he  was  arrested  on  bench  warrants  issued 
by  a  United  States  circuit  court,  based  on  charges  of  other  oflenses 
committed  before  his  surrender,  and  was  afterwards  served  with  a  capias 
issued  by  the  same  court  in  a  civil  suit  brought  by  the  United  States 
to  recover  a  debt  due  prior  to  his  surrender.  Immunity  from  prosecu- 
tion in  any  civil  action,  or  for  any  offense  other  than  that  for  which  he 
was  extradited,  wa>  claimed  for  him,  mainly  upon  the  following  grounds: 
(1)  tbat  such  immunity  is  provided  for  by  the  British  act  of  1870;  (2) 
that  it  is  to  be  implied  from  the  treaty  of  1842;  (3)  that  it  is  conceded 
by  sec.  5275,  Rev.  Stat.  It  was  advised  (1)  that  the  British  act  of  1870 
and  sec.  5275,  Rev.  Stat.,  did  not  apply;  (2)  that  the  immunity  did  not 
arise  by  implication  from  the  treaty  of  1842 ;  (3)  that  the  jurisdiction 
of  the  courts  was  not  restricted  to  tlie  extradition  crime. 

I.J  Op.,  all,  rbillips,  1875. 

"When  discussing  this  question  in  the  eighth  edition  of  my  work  on 
Criminal  Practice  and  Pleading,  section  49.  and  also  in  the  second  edi- 
tion of  my  book  on  Conllict  of  Laws,  section  84G,  I  took  the  position  that 
it  was  "  an  abuse  of  this  high  i)rocess,  and  an  infringement  of  those  rights 
of  asylum  which  the  law  of  nations  rightly  sanctions,  to  permit  the 
charge  of  an  offense  for  which  extradition  lies  to  cover  au  offense  for 
which  extradition  does  not  lie,  or  which  it  is  not  considered  politic  to  in- 
voke." In  Rauscher's  case,  decided,  in  conformity  with  this  view,  by 
the  Supreme  Court  of  the  United  States  on  December  G,  188G,  it  was 
lield  that  where  a  party  was  extradited  from  England  on  the  charge  of 
murder  of  a  sailor,  he  could  not  be  tried,  when  brought  to  this  country, 
on  the  charge  of  inflicting  cruel  and  unusual  puni.shment  on  the  same 
seaman  (Waite,  C.  J.,  diss.).  But  aside  from  cases  arising  under  trea- 
ties, the  question  is  not  how  the  defendant  was  brought  into  the  juris- 
diction, but  whether  he  is  in  it.  If  he  is,  he  is  indictable  in  such  court,  no 
matter  by  what  outrageous  perversion  of  i)rocess  he  was  brought  within 
its  clutch.  (Caldwell's  ca.se,  8  Blatch.,  131;  U.  S.  v.  Lawrence,  13 
Blatdi.,  295;  Adriancc  v.  Lagrave,  59  X.  Y.,  110;  Miller,  in  re,  G  Cr. 
Law  Mag.;  511;  19  Bost.,  liep  ,  453;  Ker's  case,  110  111.  G31,  all.  Sup. 
Ct.  U.  S.,  Dec.  188G.  See  note  to  G  Cr.  Law  Mag.,  514,  and  several 
Canada  rulings  cited  in  U.  S.  For.  Rel.  187G,  235;  CMarke  on  I'^xlrad. 
(2d  ('<!.),  90-9;',;  Paxton's  case,  10  Low.  Can.  \W]>.,  212,  11,  352;  Von 

7'J7 


§  271.]  EXTRADITION.  [CIIAP,  XI, 

Aeinaurs  case,  Up.  Can.  lie]).,  4  O.  P.,  -88.     !See  also  House  Ex.  Doc. 
173, -l-ltli  Cou^.,  1st  sess.) 

That  as  a  matter  of  iuteriiational  law  tlic  defeiulaiit  should  only  be 
tried  for  the  oU'euse  for  which  he  is  extradited,  see  Mr.  W.  B.  Lawrence, 
14  All).  Law  J.,  0();  19  ibid.,  3l'9;  Cairns,  chancellor,  as  quoted  in  U.  S, 
For.  liel.,  1870,  280,  200;  Spear  on  Extrad.,  chap,  vi ;  Lowell,  J.,  in  10 
Am.  Law  J.,  017,020;  U.  S.  r.  Watts,  8  Sawyer,  370,  14  Fed.  Kep.,  130; 
Com.  r.  Ilawes,  13  Bush,  097  ;  14  Cox  C.  C,  135;  State  v.  Vanderpool, 
39  Ohio  St.,  273;  Compton  r.  Wilder,  40  Ohio  St.,  130;  Cannon,  in  re, 
47  Mich.,  487;  Blanford  v.  State,  10  Tex.,  027 ;  Kelty  v.  State,  13  Tex. 
Ap.,  1.j8.  See  to  same  ellect  I\Ir.  Si)rague  in  London  Law  Mag.  for 
1875,  139;  llenault  Etude  sur  I'Extradition.  It  should  be  added  that  a 
clause  in  a  treaty  which  i)rovides  that  the  defendant  shall  be  only  tried 
for  the  offense  specified  in  the  demand  would  sometimes  defeat  Justice. 
Often  a  minor  treaty  offense  is  contained  in  the  major  oU'ense  for  which 
extradition  is  demanded,  or  one  treaty  offense,  not  technically  specilied 
in  the  demand,  is  ancillary  to  one  which  is  so  specified.  In  such  cases 
it  would  not  be  contended  that  it  is  rij^ht  that  the  defendant,  on  the 
offense  as  charged  turning-  out  not  to  exactly  cover  the  offense  as  proved, 
should  be  sent  back  to  the  country  from  which  he  came.  The  more  rea- 
sonable treaty  limitation  is  that  on  the  specified  charge  failing,  he  may 
be  tried  for  any  other  enumerated  offense  which  rests  on  the  same  facts 
as  those  on  which  rests  the  charge  in  the  extradition  proceedings.  Thus 
in  this  way,  after  a  surrender  for  burglary  (including  larceny),  the  de- 
fendant could  be  tried  for  larceny,  burglary  not  being  technically  sus- 
tainable. 

For  an  account  of  Winslow's  case,  see  1  Pbill.  lut.  Law  (3(1  ed.),  548.  Tlio 
autlior  couchides  that  "their  (the  Amcricau)  contention  as  to  the  express 
meaning  of  article  10  of  the  treaty  of  1842,  and  as  to  the  inability  of  the 
act  of  18/0  to  affect  it,  eeems  to  be  unanswerable.  The  question  as  to  the 
tacit  understanding  and  practice  that  prevailed  with  regard  to  extradition 
is  an  issue  rather  of  fact  than  of  law." 

As  to  whether,  when  a  treaty  excludes  citizens  of  country  of  refuge,  a  demand 
for  such  a  citizen  can  be  maintained,  see  Ti-imble's  case,  supra,  $  2G8. 

IV.   CRIME  MUST   HAVE  BEEN  WITHIX  JUIilSDICTION  OF  DEMANDING 

STATE. 

(1)    Ox  LAXD. 

§271. 

"  I  have  the  honor  to  inform  you,  iu  reply,  that  the  rresideut  of  the 
United  States  ueitlier  exercises  nnj  authority,  nor  claims  any  control, 
in  respect  to  the  persons  of  citizens  of  this  country  who  are  accused  of 
offenses  committed,  beyond  its  jurisdiction,  against  the  laws  of  a  foreign 
Government  ;  that  he  would,  however,  willingly  throw  no  obstacle  in  the 
way  of  their  i)romi)t  trial  by  the  proper  judicial  tribunals  or  authorities 
of  the  state  within  whose  juiisdiction  theoffense  was  alleged  to  have  been 
perpetrated;  and,  consequently,  that,  in  the  particular  case  of  the  sail- 
ors belonging  to  the  crew  of  the  American  frigate  Constitution,  charged 
with  the  murder  of  a  boatman  of  M  arscilles  in  France,  he  is  not  disposed 
to  interpose  any  objection  to  their  surrender  by  the  Sardinian  Govern- 
798 


chap!  XI.]  EXTRATERRITORIAL    CRIMES.  [§271. 

meut,  ou  whose  territory  tbey  had  soaglit  an  asylum,  to  tlic  Freuch 
Government;  to  bo  taken  to  Frauce  for  trial." 

Mr.  Derriclc,  Acting  Sec.  of  State,  to  Mr.  Boislecombe,  Oct.  23,  1850.     MSS. 
Notes,  France. 

'"Tbe  first  reservation  which  Mr.  Moustier  makes  is  that  in  a  case  oc- 
curring under  a  treaty  of  extradition  like  that  between  France  and  Por- 
tugal, when  the  alleged  fugitive  is  a  citizen  or  subject  of  a  third  x)ower 
not  a  party  to  the  treat}',  France  exercises  absolute  authority  to  deter- 
mine the  question  of  surrender  independently  of  the  state  of  which  the 
fugitive  is  a  citizen  or  subject,  and  France  insists  upon  this,  although 
the  treaty  of  extradition  secures  to  each  party  the  privilege  of  consult- 
ing with  a  state  or  sovereign  to  whom  the  alleged  fugitive  holds  alle- 
giance. 

"  I  find  sufficient  reason  to  approve  of  your  reply  to  Mr.  Moustier  on 
that  point.  Xo  treaty  made  between  two  sovereigns  can  at  all  affect 
any  existing  rights  of  a  third  state  which  is  not  a  party  to  the  treaty. 
Whenever  such  a  state  interpellates  for  the  maintenance  of  a  legal  right 
of  its  own,  it  is  entitled  to  be  heard  and  to  have  its  claim  determined 
upon  the  principles  of  international  law.  I  know  of  no  reason  for  antic- 
ipating an  exigency  in  which  such  an  interpellation  would  be  improp- 
erly made  by  the  United  States,  and  certainly  no  ground  was  afforded 
by  Mr.  Moustier's  proceedings  in  the  case  of  De  Silveira  for  supi^osing 
that  such  an  interpellation,  when  properly  made,  would  in  any  case  be 
disregarded  by  the  French  Government." 

Mr.  Seward,  Sec.  of  State,  to  Mr.  Dix,  Feb.  8,  1868.    MSS.  Inst.,  France. 

"If  an  American  citzien  commits  a  crime  in  a  foreign  country  and  es- 
capes thence  to  another  foreign  country,  between  which  and  that 
wherein  the  offense  was  committed  there  exists  an  extradition  for  of- 
fenses such  as  that  charged,  his  citizenship  does  not  afibrd  ground  for 
the  American  representative  to  do  more  than  to  see  that  his  reclamation 
and  extradition  are  properly  made  and  conducted." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Bcardsley,  Mar.  22,  1873.     MSS.  Inst.,  Barb.  Tow- 
ers. 

"Your  dispatch,  No.  130,  relating  to  the  demand  by  Belgium  for  the 
extradition  from  Holland  of  Adolph  Schmiderberg,  has  been  received. 
In  addition  to  the  instruction  in  my  No.  09,  the  perusal  of  your  No.  130 
induces  me  to  point  out  to  you  the  propriety  of  inquiring,  with  some 
particularity,  when  and  where  Schmiderberg  was  naturalized  as  a  citizen 
of  the  United  States,  of  ascertaining  whether  he  has  a  certificate  of  nat- 
uralization, how  long  he  resided  in  the  United  States  before  obtaining 
it,  how  long  he  has  resided  away  from  the  United  States  since  obtain- 
ing it,  wljat  his  pursuits  in  Europe  have  been,  and  what  evidence  there 
is  of  an  intent  on  liis  i)art  to  return  to  this  country. 

"  The  criminal  law  of  this  country  asserts  jurisdiction  over  all  ollcnses 
(•(Miimitted  within  tlie  territorial  limits  of  the  State  or  Territory  enacting 

799 


§271]  EXTRADITION.  [ClIAP.  XI. 

the  law,  biiL  oviT  no  crimes  committed  htyoiul  it.  An  Americiiu  citi- 
zen, tlierelbiv,  committing  an  offense  in  Europe  cannot  be  punished  lor 
that  offense  by  the  intliction  of  any  punislimeut  under  American  hiws, 
and  will  escape  punishment  altogether  if  he  can  claim  the  protection  of 
his  Government  against  a  demand  for  extradition. 

''On  motives  of  general  policy  it  would  not  be  thought  worth  while  to 
authorize  any  intervention  in  favor  of  a  criminal  in  such  case,  even  if 
he  were  a  uativeboru  citizen.  In  the  case  of  a  naturalized  citizen,  the 
representative  of  the  Government  should  further  inquire  whether  he  be 
a  bona  fide  naturalized  citizen,  and  whether  he  has  done  any  act  indi- 
cating a  purpose  to  forfeit  his  acquired  citizenship. 

"  In  the  present  case  the  Department,  referring  to  its  former  instruc- 
tions, confules  in  your  discretion  and  good  judgment." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Gorham,  Apr.  1(5,  1874.     MSS.  Iiibt.,  Brljfiiiiu  ;  For. 
Ilcl.,  187G.   As  to  extraterritorial  crime,  see  supra,  ^  15. 

"You  also  mention  the  desire  expressed  by  the  Russian  minister  of 
foreign  affairs,  that  the  treaty  contain  a  provision  for  the  extradition 
of  persons  charged  with  the  commission  of  crimes  against  the  laws  of 
either  country  outside  of  the  territorial  jurisdiction  of  the  country 
whose  laws  arc  offended  against.  This  cannot  be  conceded.  It  is  at 
once  repugnant  to  the  policy  of  tbis  Government  and  to  the  criminal 
jurisprudence  of  the  United  States,  and  in  effect  would  render  the  mu- 
nicipal law  of  one  country  operative  within  the  territorial  sovereignty 
of  another  independent  sovereign  jiower.  By  the  Constitution  of  the 
United  States  an  accused  i)arty  is  entitled  to  trial  within  the  State  and 
district  wherein  the  crime  is  committed  ;  no  offender  can  be  tried  in  the 
United  States  for  an  offense  committed  without  its  jurisdiction." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jewell,  May  9,  1874.     MSS.  lust.,  Russia. 

"In  view  of  the  marked  difference  which  is  known  to  exist  between 
the  criminal  jurisprudence  of  the  United  States  and  that  of  many  of 
the  nations  with  which  we  enter  into  treaty  relations  on  the  subject, 
both  in  the  characterization  of  crimes  and  the  modes  of  procedure  in 
the  trial  of  persons  accused  of  crimes,  and  inasmuch  as  an  observance 
of  this  policy  (of  restricting  demand  to  heinous  crimes)  has  so  far  been 
found  to  be  effective  of  the  purpose  which  you  very  justly  ascribe  to 
extradition  treaties,  i.  e.,  'to  punish  crime  and  prevent  criminals  of 
either  country  from  taking  up  an  asylum  within  ILc  territories  of  the 
other,'  while  at  the  .^ame  time  it  tends  to  secure  a  due  regard  for  indi- 
vidual rights,  the  Government  is  not  at  present  disposed  to  depart 
from  it  in  concluding  any  new  treaty  on  that  subject." 

Same  to  same,  Juno  5,  1874  ;  ibid. 

Certain  citizens  of  the  United  States  resident  iu  Italy  were  delivered 
by  the  Italian  Government  to  Belgium  on  extradition  process.     They 
were  convicted  and  sentenced  to  imprisonnicnt  in  Belgium.     They  were 
800 


CHAP.  XI.]  EXTRATERRITORIAL    CRIMES.  [§271. 

then  demanded,  when  in  prison,  by  the  Governments  of  Germany  and 
of  France.  The  United  States  minister  at  Italy  was  instrncted  to  ask 
the  Government  of  Italy  to  request  the  Government  of  Belgium  not  to 
make  such  surrender  until,  in  conformity  with  treaty,  the  defendants 
should  be  allowed  one  month  to  leave  Belgium. 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Marsh,  June  'J6,  1881.    MSS.  Inst.,  Italy. 

The  Government  of  the  United  States,  when  citizens  of  the  United 
States  are  extradited  on  charge  of  crime  from  one  European  country 
to  another,  will  inquire  whether  such  extradition  proceedings  are  con- 
ducted in  conformity  with  law,  and  instruct  its  diidomatic  representa- 
tives to  confer  on  the  subject  with  the  Governments  effecting  such  ex- 
traditions. 

Mr.  Blaine,  See.  of  State,  to  Mr.  Putnam,  June  6, 1881.    MSS.  Inst.,  Belgium. 

A  requisition  from  the  British  minister  is  not  authorized  by  the 
twenty-seventh  article  of  the  treaty  of  1794,  unless  the  persons  demanded 
are  charged  with  murder  or  forgery  committed  within  the  jurisdiction 
of  Great  Britain. 

1  Op.,  83,  Lee,  1798. 

Before  extradition  proceedings  are  commenced,  it  should  appear  that 
the  crime  alleged  was  committed  within  the  jurisdiction  of  the  demand- 
ing Government. 

JMd.;  8  Op.,  215,  Cueliing,  185G.     Supra,  §  15. 

The  party  demanded  is  subject  to  extradition,  notwithstanding 
that  he  may  have  come  to  this  country  otherwise  than  as  an  apf)arent 
fugitive  on  account  of  the  particular  crime  j  the  treaties  applying  not 
only  to  persons  seeking  an  asylum  here  professedly,  but  to  such  as  may 
be  found  in  the  country. 

8  Op.,  30G,  Cushing,  1857. 

In  the  extradition  convention  of  1852,  between  the  United  States  and 
Prussia,  it  is  provided  that  in  certain  cases  the  contracting  parties  shall, 
on  requisition,  deliver  up  to  justice  all  persons  who,  being  charged  with 
the  crimes  therein  specified,  "committed  within  the  jurisdiction  of  either 
l)arty,  shall  seek  an  asylum  or  shall  be  found  within  the  territories  of 
the  other,"  Under  this  convention  an  arrest  was  made  in  New  York  of 
S.,  alleged  to  be  a  native  of  Prussia,  and  since  his  birth  and  still  a  sub- 
ject of  the  King  of  Prussia.  The  demand  was  from  Prussia,  and  he  was 
charged  with  having  committed  at  Brussels,  in  Belgium,  "and  within 
the  legal  jurisdiction  of  Prussia,"  crimes  specified  in  said  convention. 
The  claim  was  that  inasmuch  as  such  crimes  were,  at  the  time  they  were 
committed,  i)nnish;ible  by  the  laws  of  Belgium,  S.,  being,  when  they 
were  comiiiittcd,  a  sul)j«'ct  of  Prussia,  was  by  the  laws  of  Prussia  sub- 
ject to  be  punished  for  said  crimes  in  Prussia ;  that  a  prosecution  against 
liiiii  therefor  had  been  coriimonccd  in  Prussia,  nnd  a  warrant  of  arrest 
S.  Mis.  KiL'— vol..  II 51  801 


§  271.]  EXTRADITION.  [CHAP.  XI. 

had  been  issued  against  Lim  by  the  proper  judicial  tribunal  in  Prussia 
having  jurisdlctiou  thereof;  and  that,  immediately  after  committing  the 
crimes  he  had  fled  from  the  justice  of  Belgium  and  Prussia.  There  was 
no  extradition  treaty  between  the  United  States  and  Belgium.  It  was 
held  that  the  demand  could  be  sustained  under  the  convention. 

Stiipp,  in  re,  11  Blatch.,  124. 

Attention  was  called  by  the  court  to  the  fact  that  out  of  seventeen 
of  those  treaties  and  conventions  which  were  then  in  force,  all  but  one 
provide  for  the  delivery  of  persons  charged  with  crimes  committed  within 
the  "jurisdiction"  of  one  party,  who  shall  seek  an  asylum  within  the 
*'  territories"  of  the  other. 
Ibid. 

The  case  being  referred  to  the  Attorney-General,  it  was  held  by  him 
(herein  differing  from  the  ruling  of  the  court  above  stated)  that  it  did 
not  fall  within  the  treaty,  and  a  warrant  was  refused.  It  was  held  by 
him  that  the  term  "jurisdiction"  is  convertible  with  "country." 

14  Op.,  2dl,  Williams,  1873.     For  subsequent  iirocecdiug  in  this  case  in  New 
York,  SCO  infra,  ^  275  ;  supra,  ^  1.j. 

The  prisoner  not  having  been  delivered  u])  within  two  calendar 
months  after  his  final  commitment,  a  motion,  under  section  4  of  act 
12th  August,  1848  (9  Stat.  L.,  o02;  liev.  Stat.,  §  5273),  was  made  to 
Judge  Blatchford,  on  notice  to  the  Secretary  of  State,  to  discharge 
the  prisoner  from  custody,  and  he  was  discharged. 

From  the  oi)inion  of  the  Attorney-General  (14  Op.,  281)  above  noticed 
the  following  is  taken  : 

"  Thomas  AUsop,  a  British  subject,  was  charged  as  an  accessary  be- 
fore the  facts  to  the  murder  of  a  Frenchman  in  Paris,  in  1858,  and 
escaped  to  the  United  States,  and  as  he  was  i)unisbable  therefor  by  the 
laws  of  Great  Britain  the  question  as  to  whether  he  could  be  demanded 
by  Great  Britain  of  the  American  Government,  under  the  extradi- 
tion treaty  of  1842,  was  submitted  to  Sir  J.  D.  Harding,  the  queen's 
advocate,  the  attorney  and  solicitor-general.  Sir  Fitzroy  Kelly,  since 
chief  baron  of  the  exchequer,  and  Sir  Hugh  Cairns,  since  lord  chan- 
cellor, and  they  recorded  their  judgment  as  follows: 

"  'We  are  of  the  opinion  that  Allsop  is  not  a  person  charged  with  the 
crime  of  murder  committed  within  the  jurisdiction  of  the  British  Grown, 
within  the  meaning  of  the  treaty  of  1842,  and  that  his  extradition  can- 
not properly  be  demanded  of  the  United  States  under  that  treaty.' 
Forsyth's  case,  268." 

II  Blatch.,  123.     See  also  opiuiou  of  Att'y  Gen.  Gushing,  8  Op.,  215. 

The  question  is  whether  the  term  "jurisdiction"  applies  to  the  place 
where  the  crime  originated,  or  where  it  took  effect.  That  the  latter 
may  have  concurrent  jurisdiction,  see  Whart.  Or.  Law  (9th  ed.),  §§  288 
ff.     Supra,  §  15. 

In  li.  V.  Nillins,  53  Loudon  Law  Jour.,  157  (1858),  it  was  held  that 
extradition  would  be  sustained  in  a  case  where  the  defendant,  when  in 
England,  sent  letters  containing  false  pretenses  to  Hamburg,  where  the 
money  was  obtained.     See  also  II.  v.  Jacobi,  40  L.  T.,  595. 

803 


CHAP.  XI.]  CKBIES    ON   SHIP-BOAKD.  [§  271a. 

(2)   Ox  SniP-BOARD. 

§  271a. 

Thomas  oS^ash,  alias  Eobbius,  beiug  charged  with  having  committed 
murder  on  board  the  Hermioue,  a  British  war-vessel,  on  the  higli 
seas,  requisition  was  made  by  the  British  minister  for  his  delivery 
under  the  twenty-seventh  article  of  the  treaty  of  1794.  The  district 
judge  of  South  Carolina,  before  whom  the  prisoner  was  brought  by 
habeas  corpus^  made  an  order,  as  is  stated  in  the  report,  at  the  particular 
request  of  the  President  of  the  United  States,  that,  as  there  was  sufQcient 
evidenceof  criminality  to  justify  the  apprehension  and  commitment  for 
trial  of  the  prisoner,  he  be  delivered  over  by  the  marshal  of  the  court 
to  the  British  consul  under  the  twenty-seventh  article  of  the  treaty. 

Bee's  Adm.  Eep.,  267.    Supra,  $  '62a. 

The  speech  of  Mr.  Marshall,  afterward  Chief-Justice,  made  in  the 
House  of  Eepresentatives,  when  the  Administration  was  attacked  for 
its  action  in  this  case,  is  attached  as  a  note  to  the  above  report. 

See  Wbart.  St.  Tr.,  292-456. 

The  position  assumed  by  INIr.  Marshall,  on  the  question  of  the  juris- 
diction of  Great  Britain  in  the  Eobbins  case,  was  that  "according  to  the 
practice  of  the  world,  then,  and  the  opinions  of  writers  on  the  law  of 
nations,  the  murder  committed  on  board  of  a  British  frigate  navigating 
the  high  seas,  was  a  murder  committed  within  the  jurisdiction  of  the 
British  nation." 

Whart.  St.  Tr.,  444. 

In  Mr.  H.  Adams's  Life  of  Gallatin  we  have  the  following: 
"A  matter  of  a  very  different  nature  absorbed  the  attention  of  Con 
gress  during  the  months  of  February  and  Alarch.  This  was  the  once 
famous  case  of  Jonathan  Eobbins,  a  British  sailor  claiming  to  be 
an  American  citizen,  who,  having  committed  a  murder  on  board  the 
British  ship  of  war  Ilermione,  on  the  high  seas,  but  escaped  to 
Charleston,  and,  under  the  27th  article  of  the  British  treaty,  had  been 
delivered  up  by  the  United  States  Government.  At  that  time  extradi- 
tion was  a  novelty  in  our  international  relations.  The  President  was 
violently  attacked  for  the  surrender,  and  a  long  debate  ensued  in  Con- 
gress. iMr.  Gallatin  spoke  at  considerable  length,  but  his  speech  is  not 
reported,  and  altiiough  voluminous  notes,  made  by  him  in  preparing  it, 
are  among  his  i)ai)ers,  it  is  impossible  to  say  what  portion  of  these  notes 
was  actually  used  in  the  speech.  The  triumphs  of  the  contest,  how- 
ever, did  not  fall  to  him  or  to  his  associates,  but  to  John  Marshall,  who 
followed  him,  and  who,  in  a  speech  that  still  stands  without  a  i)arallel 
in  oiir  Conjiressional  debates,  r('pli<Ml  to  him  and  to  them.  There  is  a 
tradition  in  Virginia  that  after  ^larsliall  concltukMl  his  speech,  the  Ke- 
pul)lican  members  pressed  I'oiind  Gallatin,  urging  with  gieat  earnest- 
ness tiiat  it  slioidd  be  answeiccl  iit  once, and  that  (rallatin  leplied  in  his 
foreign  acjcent,  '  (ientlenien,  answer  it  yoursehcs ;  for  my  part  I  think 
it  unan.s^ce/ahle,'  laying  the  stress  on  the  antepenultimate  syllable.  The 
Btory  is  piobably  true.    At  all  evouts,  Mr,  Gallatin  made  no  answer, 

803 


§271(3.]  EXTUADITION.  [CIIAP.  XI. 

and  Mr.  MarsLall's  argument  settled  tlic  disi)ute  by  an  overwhelming 
vote." 

Adams's  Gallatin,  231,  232. 

As  discussing  Eobbins'  case,  see  1  Phill.  Int.  Law  (3d  I'd.),  r)44  ;  and  soo  Spear 
on  Extrad.,  53 ;  5  J.  Q.  Adams  Mem.,  400. 

Murder  and  piracy  committed  on  board  of  a  British  shipof-war,  on 
the  high  seas,  is  "committed  within  tlie  jurisdiction"  of  Great  Britain 
so  as  to  justify  a  demand  of  surrender  by  the  British  Government  un- 
der the  27th  article  of  the  treaty. 

Mr.  Pickering,  Sec.   of  State,  to  tlio  President,  May  ir>,  1799  (Robbiim'  case). 
Sec  1  Op.,  509,  Wirt,  lt'21.     As  to  Kobbius'  case,  see  sujtra,  ^  '^'^(t. 

In  the  construction  of  the  British  treaty  of  extradition  a  crime  com- 
mitted at  sea,  on  board  of  an  American  vessel,  has  been  considered 
the  same  as  if  committed  in  the  territory  of  the  United  States. 

Mr.  Buchanan  to  Mr.  Marcy,  Angust  3,  18r)5,  MSS.  Dispatches,  Gr.  Brit. 

An  extraditable  crime  on  board  a  United  States  merchant  ship  at  sea 
being  "committed  within  the  putative  territory  of  the  Union,  it  is  jus- 
ticeable  by  the  federal  courts  and  by  them  alone;"  and  if  the  oflender 
takes  refuge  in  a  foreign  land,  he  may  be  demanded,  uiuler  treaty,  from 
such  land. 

8  Op.,  8-1 ;  Gushing,  185G.     See  supra,  ^  33fl,  for  this  case  in  other  relations. 
Sec  Lawrence's  Wheaton  (ed.  1803),  242. 

"This  Department  approves  of  the  conduct  of  that  officer  in  refusing 
to  give  up  the  men  charged  with  larceny,  to  whom  his  dispatch  refers. 
A  man-of-war  of  one  country  in  the  port  of  another,  is,  during  her  stay, 
tabe  regarded  as  a  part  of  the  country  to  which  she  belongs.  {Supra, 
§  30.)  As  such,  her  commander  may  exercise  his  discretion  as  to  whom 
he  may  admit  on  board.  This  right  extends  even  to  a  refusal  to  see  a 
ministerial  officer  of  the  law  in  the  foreign  port,  or  to  recognize  an  ap- 
plication to  give  up  a  man  on  board  who  may  have  committed  an  olfense 
on  shore.  Any  person,  however,  attached  to  such  a  man-of-war,  charged 
with  an  offense  od  shore,  is  liable  to  arrest  therefor  in  the  country 
where  the  offense  may  have  been  committed. 

"In  the  event  that  a  person  on  board  the  foreign  ship  should  be  charged 
■with  a  crime  for  the  commission  of  which  he  would  be  liable  to  be  given 
up,  pursuant  to  an  extradition  treaty,  the  commander  of  the  vessel  may 
give  him  up  if  such  proof  of  the  charge  should  be  produced  as  the  treaty 
may  require.  In  such  case,  however,  it  would  always  be  advisible  to 
consult  the  nearest  minister  of  the  United  States.  This  was  done  in  this 
instance,  and  the  decision  of  Mr.  Marsh  that  the  persons  demanded  were 
not  liable  to  be  given  up  pursuant  to  the  treaty  with  Italy,  is  approved 
by  the  Department." 

Mr.  Fish,  5cc.  of  State,  to  Mr.  Case,  Jan.  27,  1872.     MSS.  Dom.  Let.    Supra,  $ 
33a. 

801 


CHAP.  XI.]      NO  EXTRADITION  FOR  POLITICAL  OFFENSES.  [§  272. 

II. J  a  persou  who  took  passage  on  board  a  British  vessel  at  Portland, 
bound  for  ISTew  Brunswick,  attacked  and  wounded  the  mate  of  the  ves- 
sel when  on  the  high  seas,  and  then  escaped  to  the  shore  in  Maine. 
The  vessel  then  put  into  Portland,  Me.,  where  the  mate  died.  The 
British  Government  demanded  the  surrender  of  R.  for  trial.  The  offense 
was  made  indictable  by  statute  in  Maine.  His  extradition  was  refused, 
though  it  was  added  that  "  in  case  the  proceedings  now  commenced 
against  the  accused  by  the  authorities  of  the  State  of  Maine  shoukl  not 
be  prosecuted  to  a  trial,  or  should  it  appear  that  without  good  reason 
the  prisoner  should  be  discharged,  and  the  British  Government  should 
see  fit  to  again  request  the  extradition  of  the  accused,  such  request 
would  receive  careful  consideration. 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Watson,  Aug.  15, 1874.    MSS.  Notes,  Gr.  Brit. 

The  defendant  was  subsequently  acquitted  in  Maine  on  the  ground 
of  insanity,  and  this  was  held  such  an  acquittal  as  to  bar  extradition. 
Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Watson,  Oct.  17,  1874  ;  ihid. 

The  proper  view  is  that  extradition  should  not  be  granted  where  the 
state  in  which  the  defendant  has  sought  an  asylum,  has,  with  the 
prosecuting  state,  admiralty  jurisdiction  of  the  offense,  as  where  the 
offense  was  piracy  by  tbe  law  of  nations  on  the  high  seas.  For  several 
reasons  this  view  should  be  maintained.  In  tbe  first  place,  by  refus- 
ing to  surrender,  a  needless  circuity  of  process  involving  great  cost  is 
arrested.  In  the  second  i^lace,  a  defendant's  personal  rights  would  be 
needlessly  imperiled  by  his  forcible  removal  to  a  foreign  forum.  And 
again,  if  a  surrender  could  be  made  in  one  case  of  admiralty  jurisdic- 
tion, it  couUl  be  made  in  another;  and  if  the  rule  be  admitted  at  all, 
there  would  be  few  admiralty  prosecutions  that  might  not,  at  executive 
discretion,  be  removed  to  a  foreign  land  under  a  foreign  law.  In  such 
cases  the  executive  of  the  asylum  state  may  properly  refuse  to  sur- 
render, or  a  court,  on  habeas  corpus,  may  grant  a  discharge. 

As  sustaining  this  view,  see  11.  v.  Tivnan,  5  B.  «&  S.,  G45;  S.  C.  under 
Uiime  of  Tirnan,  12  W.  I{.,  848.  On  tlie  other  hand,  in  Siieazle,  in  re, 
I  Wood.  &  ]Min.,  00,  it  was  held  that  the  extradition  treaty  with  Eng- 
land required  the  surrender  by  the  United  States  of  a  British  subject 
who  committed,  on  a  British  ship,  on  the  high  seas,  ])iracy,  which  was 
such  by  act  of  Parliament  but  not  bv  the  law  of  nations.  (Conii)are 
Bennet,  in  re,  11  Law  T.  K.,  488.)     W'hart.  Conf.  of  Laws,  §§  83!),  842. 

It  is  stated  by  Sir  K.  Phillimore,  that  "the  country  demanding  the 
criminal  must  be  the  country  in  which  the  crime  is  committed."  (1 
Phill.  Jnt.  Law,  413.) 

Jurisdiction  of  crimes  at  sea  is  considered  in  another  chapter. 

Supra,  5  ^  33a  ff. 

V.  NO  EXTRADITION  FOR  POLITICAL  OFFENSES. 

§  272. 

"Most  codes  extend  their  definitions  of  treason  to  acts  not  really 
against  one's  country.  They  do  not  distinguish  between  acts  against 
llie-  Government  and  acts  against  the  opprrssious  of  the  (lonritiiirnt. 

805 


§  272.]  EXTRADITION.  [ciIAP.  XI. 

The  latter  are  virtues,  yet  have  furnislicd  more  victims  to  the  execu- 
tioner tlian  the  former.  #  *  *  The  nusuccessful  strugolers  against 
tyranny  have  been  the  chief  martyrs  of  treason  laws  in  all  countries. 
*  *  •  Treasons,  then,  taking  the  sinudatcd  with  the  real,  are  suf- 
ficiently punished  by  exile." 

Mr.  Jefferson,  Sec.  of  State,  to  Messrs.  Carmicbael  and  Short,  Mar.  22,  1792. 
MSS.  lust.,  Ministers.     1  Am.  St.  Pap.  (For.  Rel.),  258. 

The  Government  of  the  United  Stares  cannot  consent  to  the  sur- 
render, by  the  city  of  Bremen,  to  another  German  state,  on  the  plea 
of  dereliction  in  military  service,  of  a  citizen  of  the  United  States 
temporarily  residing  in  Bremen. 

Mr.  Cass,  Sec.  of  State,  to  Mr.  Sclileider,  Apr.  9,  18C9.     MSS.  Notes,  Hanse 
Towns. 

The  rule  forbidding  extradition  for  political  oifenses  does  not  hold, 
it  seems,  when  the  place  of  asylum  is  an  Oriental  or  semi-civilized 
country. 

Mr.  Seward,  Sec.  of  State,  to  Mr.  McMath,  Apr.  28,  18G2.     MSS.  lust.,  Barb. 
Powers. 

But  this  is  at  variance  not  only  with  the  approval  by  both  the  United 
States  and  Great  Britain  of  the  refusal  of  Turkey  to  surrender  Koszta 
to  Austria,  but  with  the  general  i)olicy  of  international  law. 

Supra^  H  175,193. 

"  I  have  the  honor  to  acknowledge  the  receipt  of  your  note  of  the  3d 
instant,  requesting  the  extradition  of  the  eight  Mexican  revolutionists 
who  were  in  the  custody  of  Captain  Rafferty,  of  the  Sixth  Regiment  of 
United  States  Cavalry,  now  stationed  in  the  Territory  of  Arizona. 

"  In  reply,  I  have  to  state  that  that  officer  appears  to  have  received 
the  prisoners  from  the  United  States  marshal  there,  who  probably  holds 
them  on  a  charge  of  violating  the  neutrality  law  of  the  United  States, 
in  making  a  hostile  incursion  into  Mexico. 

"  Under  these  circumstances  the  answer  of  the  Territorial  authorities 
to  the  Mexican  agent  who,  it  seems,  applied  for  their  surrender  was 
necessarily  in  the  negative. 

"  In  any  event,  it  would  not  be  competent  for  this  Department  to  take 
any  steps  with  a  view  to  the  extradition  of  the  prisoners  unless  their 
names  shall  have  been  furnished,  and  the  offenses  with  which  they  are 
charged  shall  have  been  specified.  The  fact,  too,  that  they  are  charged 
with  being  revolutionists  shows  that  whatever  may  have  been  their 
other  crimes  they  may  also  have  been  guilty  of  a  political  offense  for 
which  the  treaty  stipulates  that  no  extradition  shall  be  granted." 

Mr.  Hunter,  Actiug  Sec.  of  State,  to  Mr.  Navarro,  Sept.  28,  1880.     MSS.  Inst., 
Mex. ;  For.  Kol.,  1880. 

80G 


CHAP.  XI.]  CITIZEN    OF    ASYLUM    STATE.  [§  273. 

For  a  resolutiou  requesting  that  the  extraditiou  of  Agiiero,  the  Cuban 
insurgent,  to  Spain  be  refused  until  charges  against  him  are  ascertained 
to  be  true,  and  requesting  the  Attorney-General  to  investigate  the  case, 
and  ascertain  if  his  oflense  is  a  political  one,  see  House  Mis.  Doc.  34, 
48th  Cong.,  1st  sess.,  Feb.  8, 1884. 

VI.  NO  DEFENSE  THAT  DEFENDANT  IS  CITIZEN  OF  ASYLUM  STATE. 

§  273. 

That  the  defendant  is  a  citizen  of  the  asylum  state,  bars  extradition, 
on  principle,  in  those  cases  where  such  state  has  cognizance  of  the 
crime,  and  it  is  consequently  introduced  as  an  exception  in  many  of  our 
treaties.  Xo  such  exception  is  recognized  in  the  treaties  with  Great 
Britain,  France,  Italy,  and  other  states.  Under  the  English  common 
law  such  an  exception  cannot  be  recognized  except  in  cases  where  the 
asylum  state  has  jurisdiction  over  the  offense. 

Ptobbins' case,  Bee,  260;  Wbart.  St.  Tr.,  302;  Kingsbury's  case,  106  Mass.,  223; 
Dana's  Wheaton,  §  120,  note;  Lawrence's  Wheaton,  237,  note. 

When  the  question  is  one  of  discretion,  the  better  rule  is  that 
wherever,  by  the  jurisprudence  of  a  particular  country,  it  is  capable  of 
trying  one  of  its  subjects  for  an  offense  alleged  to  have  been  commit- 
ted by  such  subject  abroad,  the  extradition  in  such  case  should  be  re- 
fused ;  the  asylum  state  tben  having  the  right  of  trying  its  own  sub- 
ject by  its  own  laws.  When,  however,  it  does  not  assume  jurisdiction 
of  extraterritorial  crimes  committed  by  its  subjects,  then  extradition 
should  be  granted. 

Where  in  a  treaty  (as  in  the  case  with  the  treaties  with  Austria, 
Bavaria,  Belgium,  Hanover,  Hayti,  Mexico,  Netherlands,  Peru,  Prus- 
sia (Germany),  Spain,  and  Sweden  and  Xorway)  it  is  provided  that 
"neither  of  the  contracting  parties  shall  be  bound  to  deliver  up  one  of 
its  own  citizens,"  it  is  yet  to  be  determined  whether  this  clause  leaves 
to  the  President  the  discretion  of  making  sucli  delivery. 

Mr.  Frelinghuysen's  report  in  Trimble's  case,  Feb.  13,  1884.     Supra,  $  208. 

In  1 874,  Francisco  Perez,  a  Mexican,  murdered  an  American  in  Texas, 
and  escaped  into  Mexico.  A  request  for  extradition  was  made  by  this 
Government,  coupled  with  an  admission  that  extradition  could  not  be 
demanded  as  a  matter  of  right,  the  fugitive  being  a  citizen  of  IMexico, 
and  also  with  tlie  declaration  tiiat  the  request  was  not  made  as  a  mat- 
ter of  comity,  and  that  the  surrender,  if  made,  woukl  not  be  under- 
stood as  establishing  a  ])rece<lent  to  bind  either  Government.  Under 
these  circumstances  the  Mexican  Government  refused  the  request. 

In  187'J,  Zeferino  Avalos,  a  ]\Iexican  soldier,  murdered  a  fellow-Mex- 
ican in  Texas,  and  escai)ed  into  his  own  country,  where  he  was  arrested, 
tried  by  a  Mexican  court,  and  bung. 

807 


<^274.]  KXTRADITION.  [CIIAP.  XT. 

VII.  MUST  HE  SPECIFIC  FOREIGN  DEMAND. 

§274. 

As  to  whotlier  a  iiiaiulatc  or  cortilicate  from  the  Drpartnioul  of  Stnto  ia  a  pro- 
requisite  to  au  arrest,  see  infra,  $  27G. 

As  to  practice  in  extradition  cases  under  treaty  with  Great  Britain  of  1842,  see 
Mr.Fisl),  Sec.  of  State,  to  Mr.  Pierrepont,  Jan.  23,  1877.  MSS.  Inst.,  Gr. 
Brit. 

As  to  history  of  current  negotiations,  see  same  to  same,  Feb.  23,  1877  ;  Feb.  24 
1877  ;  Mar.  2,  1877. 

Under  the  Ashburton  treaty  a  requisition  for  a  fuj^itivc  is  not  neces- 
sary to  a  preliminary  examination  upon  wbicb  the  evidence  of  crim- 
inality is  to  be  heard  and  considered,  when  such  examination  is  with  a 
view  only  to  the  surrender  after  the  ascertainment  of  the  facts  showing 
the  party  charged  to  be  in  a  condition  which  justifies  the  api)rehcnsion 
and  commitment  for  trial  according  to  the  laws  of  the  place  where  he 
or  she  shall  be  found. 

4  Op.,  201,  Nelson,  18-13. 

The  United  States  will  not  make  demand  for  extradition  of  a  person 
alleged  to  be  a  fugitive  from  the  justice  of  one  of  the  United  States, 
and  to  have  taken  refuge  in  Great  Britain,  exce])t  on  the  exhibition  of 
a  judicial  ''  warrant"  duly  issued,  on  sufficient  proofs,  by  the  local 
authority  of  the  State  in  which  the  crime  is  alleged. 

G  Op.,  48'.,  Cashing,  1854. 

All  demands  for  extradition  must  come  from  the  executive  authority 
of  the  demanding  state. 

7  Op.,  6,  dishing,  1854. 

There  can  be  no  actual  extradition  without  proper  requisition  to  that 
effect,  addressed  by  the  foreign  Government  to  the  Secretary  of  State; 
and  although  extradition  cannot  be  ordered  by  the  President  on  mere 
judicial  documents,  but  requires  executive  requisition,  still  it  may  be 
efiected,  in  the  absence  of  any  diplomatic  minister  of  the  demanding 
Government,  through  other  intermediate  agencies  recognized  by  the 
law  of  nations. 

8  Op.,  240,  Cashing,  1856. 

"Applications  for  extradition  are  made,  as  a  rule,  by  the  diplomatic 
representative.  In  case  a  consul  is  charged  with  such  a  duty,  he  may 
expect  to  receive  instructions  from  the  Department  of  State,  or  from 
the  diplomatic  representative." 

Printed  Pers.  Inst.  Dip.  Agents,  1885. 
As  to  mode  of  arrest,  see  infra,  $  276a. 

808 


CHAP.  XI.J       STATE  GOVERNMENTS  CANNOT  EXTRADITE.  [§  275. 

VIII.  STATE  GOVERNMENTS  CANNOT  EXTL'JDITE. 
§275. 

George  Holmes  was  arrested  in  the  State  of  Vermont  on  a  warrant 
or  order  of  the  governor  of  the  State,  addressed  to  a  State  sheriff,  stat- 
ing that  an  indictment  had  been  found  against  him  for  murder  in  Can- 
ada, and  commanding  the  sherilf  to  convey  him  to  the  border  between 
Canada  and  Vermont,  and  deliver  him  to  the  Canadian  authorities.  A 
habeas  corpus  was  issued  by  the  Supreme  Court  of  the  United  States, 
and  the  prisoner  was  remanded,  and  a  writ  of  error  taken  to  the  Su- 
preme Court  of  the  United  States.  The  court  was  equally  divided  as 
to  the  question  of  jurisdiction,  and  the  writ  of  error  was  dismissed. 

Holmes  v.  Jenni.son,  14  Peh.,  540,  1840. 

Chief  Justice  Taney,  in  his  opinion,  in  which  Justices  Story,  McLean, 
and  Wayne  concurred,  stated,  as  their  conclusion  on  this  particular 
point — 

"Upon  the  whole,  therefore,  my  three  brothers  and  myself,  after  a 
most  careful  and  deliberate  examination,  are  of  opinion  that  the  power 
to  surrender  fugitives,  who,  having  committed  offenses  in  a  foreign 
country,  have  fled  to  this  for  shelter,  belongs,  under  the  Constitution 
of  the  United  States,  exclusively  to  the  Federal  Government,  and  that 
the  authority  exercised  in  this  instance  by  the  governor  of  Vermont  is 
repugnant  to  the  Constitution  of  the  United  States." 

Hid.,  57'J. 

Holmes  was  subsequently  discharged  by  the  supreme  court  of  Ver- 
mont on  habeas  corpus. 

In  New  York,  in  1S74,  Governor  Dix  having  ordered  the  surrender  of 
Carl  Vogt,  alias  Stiipp,  after  a  refusal  by  the  President  to  surrender  him 
to  Germany,  as  the  offense  was  committed  out  of  lier  territory,  or  to 
Belgium,  in  the  absence  of  treaty  i)rovisions,  the  court  of  appeals  of 
New  York  unanimously  agreed  in  discharging  the  prisoner,  on  the 
ground  that  the  governor  had  no  i)Ower  to  make  the  surrender. 

Peofjle  ex  rel.  Barlow  v.  Curtis,  50  N.  Y.,  3'21.     P\)r  proceedings  in  tlie  federal 
courts  in  Stni»i»'«  case,  see  nupra,  $  271. 

Without  the  consent  of  Congress,  no  State  can  enter  into  any  agree- 
ment or  compact,  express  or  implied,  to  deliver  up  fugitives  from  the 
justice  of  a  foreign  state  who  may  be  found  within  its  limits. 

:5  0p.,  GOl,  Lojrar<5,  1841. 

Where,  however,  there  is  no  extradition  treaty,  it  was  at  one  time 
held  that  the  Department  may,  under  pecnliiir  cinuimstances,  sanction 
the  efforts  of  a  State  executive  to  obtain  a  snnender.  In  1837  the  De- 
])artment  of  State  saii(;tioned  a  demand  Irom  thc^  governor  of  Michigan 
on  Texas  (tluMi  an  independent  State)  for  the  delivery  of  a  fngitive,  and 
in  1840  a  demand  of  the  goxcnior  of  (Icorgia  on  Texas  for  the  same  pnr- 

800 


§  275.]  EXTRADITION.  [CHAP.  XI. 

pose,  there  beiug  no  extnulition  treaty  ou  which  the  Fetleral  Govern- 
ment could  act. 

Mr.  Forsyth  to  Mr.  Rojjcr.s,  July  'io,  1637.     See  Mr.  Forsyth  to  Mr.  Hartlee,  Mar. 
no.  1810.     MSS.  Doni.  Let. 

"An  aggravated  case  of  forgeiy  having  occurred  in  the  city  of  New 
York  in  the  year  1821,  and  the  oliender  having  taken  refuge  in  Canada, 
Governor  Clinton  ai)i)li('d  toEarlDalhonsio,  then  governor  of  Canada,  to 
have  him  delivered  to  the  authorities  of  the  State  of  New  York  for  trial, 
which  request  was  promptly  complied  with;  the  case  being  one  in 
which  the  interference  of  the  governor  of  C.mada  was  authorized  by 
the  laws  of  the  province — a  reciprocation  of  such  friendly  and  liberal 
ofiSces,  wlienever  it  should  become  necessary  being,  in  the  opinion  of 
Governor  Clinton,  enjoined  by  policy  as  well  as  required  by  courtesy  ; 
and  the  state  of  the  question  as  to  the  powers  of  the  Federal  Executive 
being  at  the  time  the  same  as  it  is  now,  he  felt  it  to  be  his  duty  to 
bring  the  subject  before  the  legislature  of  the  State.  He  did  so  in  his 
annual  address,  at  the  succeeding  session,  in  which  he  stated  that  'the 
treaty  with  Great  Britain  having  expired  fourteen  years  before,  and 
no  conventional  provision  upon  the  subject  having  been  subsequently 
made,  a  question  had  arisen  whether  either  the  State  or  national  au- 
thorities were  authorized  by  the  law  of  the  land  or  obligated  by  the  law 
of  nations,  to  surrender,  in  any  case,  fugitives  from  justice  from  foreign 
countries,  and  recommended  the  adoption  of  adequate  general  provis- 
ions on  the  sul)ject,  which  would,  he  thought,  have  a  salutary  tendency 
in  preventing  and  punishing  crimes,  and  expelling  from  our  territory 
malefactors  who  resort  to  it  from  other  countries  in  expectation  of  im- 
munity.' 

"The  legislature  at  the  same  session,  viz,  on  the  5th  of  April,  1822, 
passed  an  act  authorizing  the  governor,  in  his  discretion,  to  deliver  over 
to  justice  any  person  found  within  the  State  who  shall  be  charged  with 
having  committed,  without  the  jurisdiction  of  the  United  States,  any 
crime  except  treason,  which  by  the  laws  of  this  State,  if  committed 
therein,  is  punishable  by  death  or  imprisonment  in  the  State  prison. 
This  bill  received  the  sanction  of  the  council  of  revision,  then  composed 
of  governor,  chancellor,  and  judges  of  the  supreme  court  of  the  State, 
and  became  a  law. 

"It  continued  on  the  statute-book  until  182G,  when  it  came  up  for 
revision,  and  again  received  the  sanction  of  the  legislative  and  execu- 
tive departments  of  the  State  government,  and  according  to  the  forms 
of  the  constitution  was  re-enacted,  and  has  been,  occasionally,  actually 
enforced  as  a  part  of  the  laws  of  the  State  during  a  period  of  seventeen 
years. 

"  It  was  in  favor  of  a  continuance  by  Governor  Seward  to  act  under 
this  law  as  his  predecessors  bad  done,  until  it  had,  at  the  instance  of  a 
810 


CHAP.  XI.]  PRACTICE    AS    TO    ARREST.  [§276. 

party  affected  by  its  operation,  been  decided  by  the  judicial  tribunals 
to  be  unconstitutional,  that  the  suggestion  of  the  President  was  made." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Speucer,  Ang.  7,  1839.     MSS.  Doiu.  Let. 

''This  letter  will  be  handed  to  you  by  William  Xewell,  esq.,  of  Phil- 
adelphia, one  of  the  directors  of  the  Schuylkill  Bank,  of  that  city,  who 
is  about  to  proceed  to  France  in  the  British  Queen  steamer,  in  pursu- 
ance to  your  suggestions  to  the  president  of  that  institution.  The 
President  of  the  United  States  is  desirous  that  you  should  extend  to 
Mr.  Xewell  your  good  ofiQces  in  the  prosecution  of  the  immediate  ob- 
ject of  his  visit  to  Paris,  which  is  understood  to  be  to  obtain  from  Mr. 

,  the  absconding  cashier,  as  much  of  the  funds  and  other  property 

of  the  bank  in  his  possession,  or  under  his  control,  as  may  be  practica- 
ble. Xo  ofl&cial  interference  is  justifiable,  as  in  the  absence  of  treaty 
stipulations,  the  extradition  of  a  fugitive  from  Frq,nce  in  the  United 
States  under  similar  circumstances  could  not  be  authorized  by  the  Ex- 
ecutive of  the  Union. 

"  The  laws  of  Pennsylvania  do  not,  like  those  of  New  York,  provide 
for  the  surrender  of  a  fugitive  from  justice  who  seeks  from  a  foreign  na- 
tion an  asylum  within  the  State." 

Mr.  Forsyth,  Sec.  of  State,  to  Mr.  Cass,  May  29,  1840.     MSS.  Inst.,  France. 

Since  the  publication  of  the  ruling  of  the  Supreme  Court  iu  Holmes 
V.  Jennisen,  above  cited,  the  only  instance  of  action  otthe  Department 
of  State  recognizing  extradition  by  State  process  was  in  1872,  when  in 
the  absence  of  a  treaty  of  extradition  with  Belgium,  the  Belgian  minister 
at  Washington  was  informed  by  ]\Ir.  Fish  that  "in  view  of  the  gravity 
of  the  crime  "  in  a  particular  case,  the  Secretary  was  willing  to  point  out 
to  him  a  statute  of  the  Sate  of  Xew  York  passed  as  early  as  1822,  and 
included  in  the  recent  revision,  which  authorizes  the  governor  of  that 
State,  at  his  discretion,  to  deliver  up  to  the  duly  authorized  minister  or 
agentof  any  foreign  country,  any  person  charged  with  crime  alleged  to 
have  been  committed  in  said  country  ;"  and  it  was  further  stated  that 
"the  Department  would  interpose  no  obstacle  should  an  application  to 
the  governor  be  successful." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jones,  May  1,  1-572.  MSS.  lust.tRelgiiim.  This, 
however,  under  the  ruling  in  People  v.  Curtis,  above  cited,  cannot  be  sus- 
tained. 

IX.   PRACTICE  AS  TO  ARREST. 
(1)  PRKLIMIXARY  EXECUTIVK  .MANT)ATE. 

§  270. 

Complaint  on  oath  was  i)resent('d  on  June  14,  18.'">2,  to  a  commissioner 
of  the  United  States  by  the  Britisii  consul  at  New  York,  charging  that 
Thomas  Kaine  had  committed  a  murder  in  Ireland,  and  stating  also 
that  a  warrant  had  been  issueil  for  his  apprehension  in  Irehunl ;  that  ho 

811 


§  276.]  EXTRADITION.  [CIIAP.  XI. 

was  in  the  Uuited  States;  and  requesting  his  a])prehension  for  extra- 
dition under  the  treaty  of  1812.  The  commissioner,  after  an  arrest  and 
examination,  ordered  him  to  be  committed  for  extradition,  to  alide  the 
order  of  the  President,  and  he  was  hekl  in  custody  by  the  marshal.  A 
writ  of  habeas  corpus  issued  from  the  circuit  court,  which  was  dismissed. 
Ai)i)licati<)n  was  made  to  the  supreme  court  for  a  writ  of  habeas  corpus. 
On  this  application,  four  of  the  judges  held  that  the  writ  should  be 
refused  on  the  merits.  It  was  held,  however,  by  the  chief  justice  and 
two  of  the  judges  that  no  proceedings  under  the  treaty  could  be  enter- 
tained Mitliout  a  requisition  made  on  the  President,  and  his  authority 
obtained  for  that  purpose;  and  that  a  United  States  commissioner  was 
not  an  ofllcer  within  tlie  treaty  or  acts  of  Congress  to  hear  and  deter- 
mine the  question  of  criminality;  and  one  justice  held  that  the  court 
had  no  jurisdiction  to  grant  the  writ  asked,  but  did  not  express  an 
()I)inion  on  the  merits. 

In  re  Kaino,  14  How.,  103. 

The  prisoner  was  afterward  brought  before  Mr.  Justice  Nelson  at 
chambers,  and  discharged. 

Ex  parte  Kaine,  3  Blatch.,  1. 

On  August  31, 1853,  an  opinion  was  given  by  Mr.  Gushing,  Attorney- 
General,  to  the  eflect  that  nuder  the  opinions  in  Kaine's  case,  14  Eow., 
103,  it  might  be  advisible,  under  the  extradition  treaty  with  Great 
Britain,  for  a  "mandate"  to  issue  from  the  executive  department  "to 
move  to  action  the  proper  judicial  authorities  of  the  country,  in  order 
to  the  arrest  and  lawful  examination  of  the  party  charged  with  crime, 
and  the  investigation  thereof  for  the  information  of  the  Government." 
6  Op.,  91,  Gushing,  1853. 

After  the  reception  of  this  opinion,  the  practice  grew  up  in  the 
Department  of  State  of  issuing,  when  ai)plied  for,  documents  in  the 
nature  of  certificates  that  requisitions  had  been  received.  These  certi- 
ficates ("  mandates  "  or  "  warrants"  as  they  were  sometimes  erroneously 
called)  were  only  issued  when  applied  for,  and  they  were  not  applied 
for  in  most  c^ses  of  extradition,  arrest  being  asked  for  in  the  first  place 
from  commissioner  or  judge. 

The  only  judicial  ruling  in  which  the  necessity  of  such  prior  execu- 
tive action  was  acquiesced  in  is  Farez,  in  re  (7  Blatch.,  34).  Subse- 
quently, however,  in  iMacdonnell,  in  re  (11  Blatch.,  70),  this  oj)inion 
appears  to  have  been  abandoned.  See  Thomas,  in  re  {VI  Blatch.,  370); 
Kelley's  case  (2  Lowell,  339);  Boss,  ex  parte  (2  Bond,  252) ;  Van  Hoven, 
ex  parte  (4  Dillon,  415). 

In  Thomas,  in  re,  Blatchford,  J.,  delivering  the  opinion  of  the  court, 
said : 

"Without  recapitulating  the  grounds  taken  in  the  various  opinions 
referred  to,  as  reasons  for  holding  that  a  i)iior  mandate  is  not  made  a 
prerequisite,  by  any  act  of  Congi(?ss,  to  the  issuing,  by  a  magistrate,  of 
a  warrant  for  the  arrest  of  a  i'ugitivc^  whose  extradition  is  sought,  and 

812 


CHAP.  XI.]  rRACTICE  AS  TO  ARREST.  [§  276. 

is  not  such  a  prerequisite,  except  wbt^re  matle  so  by  the  treaty,  I  am 
l)repared  to  say,  tbat,  so  far  as  my  own  action  is  concerned,  it  is  not, 
for  the  purposes  of  the  present  case,  or  of  future  like  cases  (that  is, 
cases  where  the  treaty  does  not  require  a  preyious  mandate),  to  be  re- 
garded as  the  hiw,  that  the  issuing  of  an  executive  mandate,  iu  a  case 
of  extradition,  is  a  prerequisite  to  the  entertaining  of  proceedings,  and 
the  issuing  of  a  warrant  of  arrest,  by  a  magistrate." 

On  the  first  hearing  in  Kelley's  case  (reported  in  9  Am.  Law  Rev., 
1G7),  Judge  Lowell  held  that  no  such  mandate  is  necessary.  Of  this 
decision.  Judge  Blatchford,  in  his  opinion  in  Thomas,  in  re,  quotes  the 
following  sentence  (12  Blatch.,  378) : 

'•  Considering  the  strong  reasons,  as  well  as  the  great  preponderance 
of  authority,  against  the  practice — a  preponderance  which  1  find  in  the 
treaty  itself,  iu  the  statute,  and  in  the  opinions  of  the  greater  number 
of  the  judges  who  have  cousideied  the  question — and  further,  that  the 
reasons  ia  its  favor  have  lost  their  force  in  the  present  state  of  practice 
in  the  State  Department,  I  feel  constrained  to  refuse  to  establish  it  iu 
this  district."  In  the  second  hearing  in  Kelley's  case.  Judge  Lowell 
merely  said  :  "  I  issued  the  warrant  upon  a  sworn  complaint  made  by 
Her  Britannic  I\Iajesty's  consul  at  the  port  of  Boston  ;  and  gave  at 
length  my  reasons  for  not  requiring  a  mandate  from  the  President  of 
the  United  States  to  precede  the  arrest ;  "  and  then  he  reaffirmed  the 
l)oiut  previously  taken. 

In  his  decision  in  Eoss,  ex  parte  (2  Bond,  252)  Judge  Leavitt  said: 
"After  a  careful  investigation  of  the  case,  I  can  perceive  no  ground  for 
the  conclusion  that  there  must  be  authority  from  the  executive  depart- 
ment of  our  Government,  to  enable  the  judge,  magistrate,  or  commis- 
sioner to  issue  a  warrant  for  the  arrest  of  the  alleged  fugitive." 

Judge  Dillon,  in  delivering  the  opinion  of  the  court  in  Van  Hoven, 
ex  parte,  said :  "  It  is  urged  that  the  prisoner  is  entitled  to  be  discharged 
on  several  grounds : 

"  1.  That,  under  the  treaty  (article  G),  the  President  of  the  United 
States  is  required  to  issue  a  warrant  for  the  apprehension  of  the  fugi- 
tive, that  he  may  be  brought  before  the  proper  judicial  authority  for 
examination.  The  object  of  this  provision  is  that  the  legal  proceedings 
for  the  surrender  of  a  fugitive  may  have  the  sanction  of  the  executive 
department.  {Ex  parte  Kaine,  1  Blatch.,  1.)  This  is  given  in  this  case 
by  the  mandate  of  the  Secretary  of  State.  {In  re  Farez,  7  Blatch.,  34.) 
Under  our  system  of  the  separation  of  the  powers  of  the  Government 
into  departments,  the  warrant  of  arrest  issues  fiom  the  judicial  dei)art- 
ment,  and  the  substance,  sj)irit,  and  purpose  of  the  treaty  have  been 
comi)lied  with  in  this  regard." 

On  February  18,  18SG,  Mr.  Bayard,  Secretary  of  State,  made  an  order 
that  in  all  extradition  cases  brought  under  the  treaty  with  Great  Britain 
and  cognate  treaties,  no  "mandate"  or  certificate  should  issue  from 
the  Department  i^rior  to  the  action  taken  by  the  proper  judicial  author- 
ities in  the  premises.  (See  Mr.  Bayard  to  Mr.  West,  February  10, 188G, 
cited  infra.) 

When,  however,  a  ])reliminary  certificate  of  the  President  is  by  treaty 
or  otherwise  required,  it  has  been  held  (hat  a  mere  notification  by  the 
local  officer  of  a  foreign  GovcrnnnMit  of  the  escape  of  an  alleged  criminal 
is  not  sullicient  prima  facie  evidence  of  a  case  to  call  foi-  suitli  prelimin- 
ary action  of  the  President. 

7  Op.,  G,  Cuahing,  1854.  813 


§  276.]  EXTRADITION.  [CHAP.  XI. 

A  tbreiijn  mandat  d'arrct,  settinpj  forth  the  ofleDSC  of  a  fugitive  from 
the  justice  of  a  foieifjn  country,  within  the  terms  of  any  treaty  of  extra- 
dition, such  wawrfa^  coming  through  the  proper  political  channel,  is  suffi- 
cient foundation  for  the  issue  of  the  President's  mandate  authorizing 
the  institution  of  proceedings  before  the  judicial  authoritiesof  the  United 
States. 

7  Op.,  285,  Gushing,  Idfjo. 

In  such  a  mandate  it  is  sufficient  to  charge  the  offense  in  the  words 
of  the  treaty. 

Macdonuoll,  in  re,  11  Blatcb.,  79. 

The  Department  of  state  will  not  "inaugurate  applications  for  extra- 
ditions, on  the  mere  reference  to  it  of  papers,  without  a  specific  request 
or  expression  of  the  wish  of  the  Department  of  Justice  or  of  the  author- 
ity of  a  State  (as  the  case  may  be)  through  which  the  papers  may  come 
to  this  Department." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Pierrepont,  Feb.  2,  187t),     MSS.  Dom.  Let. 

"This  provision  of  the  statutes  of  the  United  States  (Rev.  Stat.  U.  S., 
§  5270)  is  deemed  by  this  Government  to  be  in  aid  of  the  provisions  of 
the  convention,  and  the  provisions  of  Article  XI  of  the  convention  (of 
Jan.  5,  1877,  with  Spain)  are  held  to  be  directory  only.  Under  these 
circumstances  the  warrant  of  authorization  from  the  Secretary  of  State 
is  not  consideied  as  indispensable.  It  may  often  hai)pen  that  an  instant 
arrest  is  expedient  in  order  to  secure  the  accused  fugitive  for  examina- 
tion into  his  criminality,  and  in  such  emergencies  the  delay  incident  to 
procuring  the  warrant  of  authorization  from  this  Department  might  de- 
feat the  purposes  of  justice. 

"The  personal  rights,  moreover,  of  the  accused  are  secured  by  the  pro- 
visions of  the  convention  no  less  than  by  those  of  the  statute,  inasmuch 
as  he  can  only  be  surrendered  on  satisfactory  evidence  of  his  crim- 
inality." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Barca,  May  23, 1882.    MSS.  Notes,  Spain 

"After  a  careful  examination  of  the  treaty  now  in  force  between  the 
United  States  and  Great  Britain  in  reference  to  extradition,  I  have  come 
to  the  conclusion  that  it  is  neither  necessary  nor  proper  that  any  man- 
date or  other  authorization  should  issue  from  this  Department  as  a  pre- 
liminary to  arrest  by  the  commissioners  or  other  judicial  officers  in 
whom  the  function  of  arrest  and  examination  in  such  cases  is  specific- 
ally vested.  I  am  strengthened  in  this  conclusion  by  the  fact  that  in 
all  cases  in  which  the  question  had  come  np  before  the  judicial  depart- 
ment of  this  Government  it  has  been  held  that,  under  the  treaty  in 
question  and  the  distinctive  legislation  of  the  United  States,  no  such 
preliininar}'  process  of  this  Department  is  requisite.  It  is  proper,  also, 
to  observe  that  this  seems  to  be  the  general  sense  of  those  who  repre- 
sent Her  Majesty's  Government  in  such  process,  since  in  most  cases  the 

811 


CHAP.  XI.]  PRACTICE  AS  TO  ARREST.  [§  216a. 

application  for  arrest  is  made  directly  to  the  commissioner,  or  other 
judicial  authority  vested  with  the  jurisdiction,  the  case  not  coming  be- 
fore this  Department  until  the  application  for  surrender." 

Mr.  Bayard,  Sec.  of  State,  to  Mr,  West,  Feb.  16,  1886.     MSS.  Notes,  Gr.  Brit. 

Every  citizen  of  the  United  States  being  secured  by  the  Constitution 
against  unreasonable  arrest,  and  magistrates  being  prohibited  from 
issuing  warrants  except  on  probable  cause,  supported  by  oath  or  affir- 
mation, the  President  cannot  order  the  arrest  of  the  master  of  an  Amer- 
ican vessel  and  his  confinement  for  trial  upon  a  communication  from  the 
British  minister,  accompanied  by  copies  of  depositions  taken  before  a 
justice  of  the  peace  of  the  island  of  Antigua,  charging  hiui  with  the 
murder  of  a  British  subject  on  the  high  seas. 

2  Op., 267,  Berrien,  1829. 

The  President  may  initiate  extradition  proceedings  without  requiring 
such  proof  as  would  warrant  the  extradition. 
6  Op.,  217,  Cusliing,  1853. 

A  competent  magistrate  may  take  jurisdiction  of  an  extradition  case, 
without  the  previous  issue  of  the  mandate  of  the  United  States ;  but 
the  extradition  cannot  take  place  until  a  proper  requisition  has  been 
made  by  the  proper  "  authorities  "  of  the  demanding  Government  to 
the  Secretary. of  State,  and  favorably  acted  upon.  The  proper  " au- 
thorities" are  such  executive  agents  or  officers  of  the  foreign  Govern- 
ment as  may  be  entitled  to  recognition  for  that  purpose  at  the  Depart- 
ment of  Foreign  Afiairs.  The  requisition  need  not  come  through  a 
regular  diplomatic  minister.  The  Government  ai)plied  to  may,  in  its 
discretion,  recognize  whom  it  will  as  agent  ad  hoc  to  make  the  requisi- 
tion. 

8  Op.,  240,  Gushing,  1856. 

(2)  Form  of  complaint  axd  wakrant. 

§  27Ga. 

A  complaint  before  a  commissioner  in  an  extradition  case,  verified 
by  the  consul  of  a  foreign  Government,  in  Avhich  he  cliarges  the  ofiense 
properly,  is  sufficient,  if  made  by  him  ofilcially,  although  he  does  not 
make  the  averments  on  his  personal  knowledge  of  the  facts. 
Franfois  Farez,  in  re,  7  Blatcb.,  34"). 

While  the  alleged  fugitive  was  lawfully  held  in  custody,  under  a  valid 
warrant  of  arrest,  and  the  incpiiry  thereunder  was  being  proceeded 
with,  a  second  warrant,  on  a  new  complaint,  for  a  distinct  ollense,  was 
issued  for  his  extradition,  lie  was  discharged  subseijuently  from  (he 
iirrest  under  (he,  first  warrant  for  want  of  sullieient  evidence  (t)  justify 
ills  commitment,  ;iii<l  he  \v;is  then^after  arrested  under  the  second  war- 
rant. It  was  ruled  lh;i(.  the  hitter  arre-st  was  not  invalid. 
MacdouucLl,  in  rv,  U  BlatcU.,  170. 

815 


§  27G6.]  EXTRADITION.  [ciIAr.  XL 

The  warrant  need  only  describe  the  offense  in  the  words  of  the  treaty. 

Castro  r.  Uiiarte,  IG  Fed.  Rep., 93. 

The  mode  of  procedure  under  the  Treaty  of  Washington  is  the  pre- 
ferment of  a  comphiint  to  a  judge  or  magistrate,  setting  out  the  offense 
c'liarged  on  oath,  whcreiipon  the  judge  or  magistrate  may  issue  a  war- 
rant for  the  apprehension  of  tlie  i)er.son  accused.  Upon  the  accused 
being  brought  before  the  judge  or  magistrate,  the  latter  should  hear 
and  consider  the  evidence  of  criminality  ;  and  if  on  such  hearing  the 
evidence  be  deemed  sufficient  to  sustain  the  charge,  the  same  should 
be  certified  to  the  executive  authority,  that  a  warrant  may  issue  for  the 
surrender. 

4  Op.,  201,  Nclbon,  1813. 

A  commissioner  for  the  United  States,  appointed  by  the  circuit  court, 
is  a  magistrate  within  the  meaning  of  the  law  and  of  the  Treaty  of 
Washington,  and  as  such  has  power  to  apprehend,  examine,  and  certify 
as  to  fugitives  from  justice. 

The  alleged  fugitive  may  be  arrested  a  second  time  on  a  new  com- 
plaint, either  with  or  without  a  new  warrant  of  the  President. 

6  Op.,  91,  Gushing,  1853. 

A  warrant  for  extradition,  issued  under  section  3,  of  the  act  of  Au- 
gust 12,  1848,  cannot  be  used  to  rearrest  a  person  who  has  been  dis- 
charged from  the  custody  of  the  marshal. 
12  Op.,  75,  Stanbcry,  18()G. 

(3)  Mode  of  arresting  and  detention. 

§  276&. 

A  nation  claiming  a  fugitive  from  justice  cannot  invade  the  territorial 
waters  of  another  state  for  the  purpose  of  arresting  such  fugitive. 

Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Wise,  Sept.  27,  1845.     MSS.  Inst.,  Brazil. 
As  to  "kidnaping"  in  Canada,  see  Mr.  Fish,  Sec.  of  State,  to  Mr.  Williams, 
Aug.  23,  1873.     MSS.  Dom.  Let.     As  to  territorial  waters,  see  supra,  $  27. 

"The  treaty  of  extradition  between  the  United  States  and  Mexico 
prescribed  the  forms  for  carrying  it  into  effect,  and  does  not  authorize 
either  party,  for  any  cause,  to  deviate  from  those  forms,  or  arbitrarily 
abduct  from  the  territory  of  one  party  a  person  charged  with  crime  for 
trial  within  the  jurisdiction  of  another." 

Mr.  Blaine,  Sec.  of  State,  to  Mr.  Roberts,  May  3,  1881,     MSS.  Dora.  Let. 
See  to  same  effect,  Mr.  Frelinghuysen  to  Mr.  Roberts,  Feb,  5,  1883.     Ibid. 

Article  II  of  the  extradition  treaty  with  Mexico  of  June  20,  18G2,  is 
as  follows: 

"In  the  case  of  crimes  committed  in  the  frontier  States  or  Territories 
of  the  two  contracting  parties,  requisitions  nniy  be  made  through  their 
respective  diplomatic  agents,  or  through  the  chief  civil  authority  of  saicl 
816 


CHAP.  XI.]  PEACTICE    AS    TO    ARREST.  [§  21 6h. 

States  or  Territories,  or  tbrougli  such  chief  civil  or  jadicial  authority  of 
the  districts  or  counties  bordeiiug-  on  the  frontier  as  may  for  this  pur- 
pose be  duly  authorized  by  the  said  chief  civil  authority  of  the  said 
frontier  States  or  Territories,  or  when,  from  any  cause,  the  civil  au- 
thority of  such  State  or  Territory  shall  be  suspended,  through  the  chief 
military  oflBcer  in  command  of  such  State  or  Territory." 

Unless  the  conditions  of  arrest  under  this  section  are  strictly  complied 
with,  the  parties  arresting-  and  carrying  ofl"  the  alleged  fugitive  may  be 
chargeable  with  kidnapping. 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  Jackson,  Aug.  23,  1886.     MSS.  lust.,  Mex. 

When  suits  are  brought  against  marshals  of  the  United  States  for 
lawful  acts  done  by  them  in  the  extradition  of  fugitives  from  justice, 
the  President  may  authorize  the  employment  of  counsel  in  their  behalf 
by  the  United  States. 

6  Op.,  500,  Gushing,  1854. 

When  demand  for  a  fugitive  from  justice  is  made  under  treaty  stipu- 
lation by  any  foreign  Government,  it  is  the  duty  of  the  United  States 
to  aid  in  relieving  the  case  of  anj*  technical  difficulties  which  maybe  in- 
terposed to  defeat  the  ends  of  public  justice,  the  object  to  be  accomi)lished 
being  alike  interesting  to  both  Governments,  namely,  the  punishment  of 
malefactors,  who  are  the  common  enemies  of  all  society. 

7  Op.,  Cusliing,  1855. 

It  is  incumbent  upon  the  United  States  to  provide  a  place  of  impris- 
onment for  persons  detained  for  extradition  at  the  instance  of  foreign 
Governments. 

8  Op.,  396,  Gushing,  1857. 

A  discharge  by  a  district  judge  of  a  person  apprehended  as  a  fugitive 
fi'om  justice  does  not  preclude  his  rearrest  under  the  warrant  of  another 
judge,  with  a  view  to  a  reexamination  of  the  case. 

10  Op.,  501,  Coflfey,  18():?. 

Transit  across  a  third  country  may  be  granted  as  a  matter  of  comity. 

"With  reference  to  your  dispatch  No.  14^,  of  the  lltli  ultimo,  re- 
porting the  request  made  by  you  of  the  Spanish  Government,  at  the 
instance  of  General  Starring,  for  permission  to  have  Cbarles  W.  Angell 
transported  in  custody  across  tbe  territory  of  Si)aiii,  an«l  the  compliance 
of  the  Si)anish  Government  therewith,  1  have  to  instruct  you  to  convey 
to  the  Spanish  minister  for  foreign  aflairs  the  sincere  satisfaction  with 
whicli  tliis  Government  lias  Icanicd  of  that  act  of  courtesy. 

"  The  question  of  the  ii;,'lit  of  transit  of  an  extradited  criminal  m  cus- 
tody acroH.s  the  territory  of  a  foreign  state,  is  now  attracting  to  some 
extent  the  iioticM' of  this  Depart nirnt.  It  is  presumed  that,  where  tlie 
oflender  is  regularly  extradited  in  pursuance  of  a  treaty,  and  the,  de- 
manding state  has  a  treaty  of  extradition  with  the  state  acro.ss  whoso 
8.  Mis.  IGU— VOL.  n 5u  «17 


§  277.]  EXTRADITION.  [CIIAP.  XI. 

territory  transit  is  sought,  it  will  be  suflicient  that  the  crime  for  which 
extradition  is  granted  shall  also  be  among  those  in  the  treaty  with  the 
country  of  transit,  and  that  tlie  warrant  of  surrender  be  exhibited. 

"If  the  i)rocedare  in  this  respect  should  be  different  in  Spain,  I  will 
thank  you  to  advise  me." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Lowell,  Mar.  5,  1»79.     MSS.  lust.,  Spain  ; 
For.  Eel.,  1870. 

"  The  conveyance  of  an  extradited  criminal  from  the  country  wbeuco 
he  is  surrendered  to  that  which  which  reclaims  him,  across  the  territory 
of  an  intervening  state  is  a  common  occurrence,  notwithstanding  that 
no  offense  has  been  committed  and  no  legal  formality  of  arrest  followed 
in  the  jurisdiction  of  the  state  through  which  he  may  pass,  and  this  is 
done  not  in  pursuance  of  the  stipulations  of  treaties  or  the  provisions  of 
domestic  law,  but  as  a  recognition  of  the  just  effect  of  the  laws  and  treat- 
ies of  foreign  states  in  matters  within  their  competence,  which  recog- 
nition pertains  to  the  sovereignty  of  an  independent  state,  and  is  exer- 
cised as  an  act  of  international  comity." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Diebman,  Nov.  I'i,  iy78.    MSS.  Inst.,  Colombia. 

<'0n  the  other  hand,  in  the  interest  of  a  full  understanding  of  the 
matter  on  its  merits,  this  Government  is  prepared  to  admit  frankly  that, 
in  conveying  the  extradited  prisoner  across  the  territory  of  Colombia 
without  the  previous  consent  of  the  Government  having  been  asked  and 
given,  it  prejudiced  any  right  it  might  have  had  to  seek  the  exetnption 
of  the  prisoner  from  the  operation  of  the  local  law  within  the  jurisdiction 
of  which  he  was  brought  under  the  stress  of  circumstances.  Had  such 
consent  been  asked,  however,  it  is  conceived  that  the  Kepublic  of  Co- 
lombia would  have  felt  constrained  to  grant  it,  in  the  same  manner  as  is 
done  in  like  cases  by  other  states  whose  constitutional  codes  are  as 
mindful  of  mdividual  rights  as  is  that  of  Colombia,  independently  of  the 
peculiar  conditions  under  which  official  transit  across  the  Isthmus  rests 
by  reason  of  the  neutrality  and  freedom  guaranteed  by  treaty." 
Ibid. 

"  It  is  well  known  that  almost  always  a  civil  officer  is  sent  abroad  to 
receive  a  prisoner  whose  extradition  may  be  demanded.  Usually  ho 
adopts  sufficient  precautious  to  prevent  the  escape  of  the  prisoner  after 
he  shall  have  received  him  into  custody.  The  same  course  would  prob- 
ably be  sufficient  for  carrying  prisoners  across  the  Isthmus  of  Panama." 
Mr.  Evarts.  Sec.  of  State,  to  Mr.  Dichman,  May  12, 1S79.    MSS.  Inst.,  Colombia. 

X.  EVIDENCE  ON  WHICH  rEOCESS  WILL  BE  GRANTED. 

§277. 

Under  the  extradition  treaty  with  Great  Britain,  "the  criminality  of 
the  act  charged  should  be  judged  of  by  the  laws  of  the  country  within 
•whose  jurisdiction  the  act  was  perpetrated,  but  the  evidence  on  which 
818 


CHAP.  XI.]  EVIDENCE  OX  WHICH  PROCESS  WILL  BE  GRANTED.    [§  277. 

the  fugitive  should  be  delivered  up  to  justice  should  be  the  laws  of  the 
place  where  he  shall  be  fouud," 

Mr.  CalhouD,  Sec.  of  State,  to  Mr.  Everett,  Aug.  7, 1844.  MSS.  lust.,  Gr.  Brit. ; 
game  to  same,  Jan.  28,  1845. 

Under  the  French-American  extradition  convention  the  delivery  of 
fuffitives  shall  be  made  "only  when  the  fact  of  the  commission  of  the 
crime  shall  be  so  established  as  that  the  laws  of  the  country  in  which 
the  fugitive  or  the  person  of  the  accused  shall  be  found,  would  justify 
his  or  her  apprehension  and  commitment  for  trial  if  the  crime  had  been 
there  committed."  This  language  "evidently  involves  a  question  of 
evidence,  which,  in  all  cases,  so  far  as  the  United  States  are  concerned, 
belongs  to  the  judicial  tribunals  of  the  country."  "What  evidence  is 
necessary  in  order  to  authorize  an  arrest  or  comniitmeiit,  depends  upon 
the  laws  of  the  state  or  place  where  the  criminal  may  be  fouud." 

Mr.  Calhoun,  Sec.  of  State,  to  Mr.  Pageot,  Dec.  4,  1844.  MSS.  Notes,  France. 
Metzger's  case.  See  Mr.  Buchanan,  Sec.  of  State,  to  Mr.  Pageot,  Nov.  3, 
ld47,  Nov.  10,  ld47.     MSS.  Notes,  France. 

"  I  have  the  honor  to  acknowledge  the  reception  of  your  note  of  the 
5th  instant,  making  inquiries  respecting  a  certain  stipulation  supposed 
to  have  been  inserted  in  several  extradition  treaties  which  ha\'e  been 
recently  concluded  by  this  Government. 

"It  is  believed  that  you  are  under  a  misapprehension  in  supposing 
that  the  provision,  as  cited  in  your  note,  has  been  inserted  in  many  of 
the  treaties  of  extradition  which  this  Government  has  entered  into  with 
other  powers,  or  that  it  has  been  inserted  in  any  of  those  recently  en- 
tered into.  I  am  under  the  impression  that  it  is  to  be  found  in  only 
three  of  the  treaties  of  extradition  concluded  by  the  United  States,  and 
la  none  concluded  within  the  last  six  years.  No  question  has  been 
raised  by  either  of  the  Governments  with  whom  treaties  have  been  en- 
tered into  containing  thesti])ulation,  cited  in  your  note,  as  to  its  import. 
I  abstain,  therefore,  from  speculating  in  the  abstract  upon  provisions 
of  detail  in  treaties  of  extradition  existing  between  the  United  States 
and  other  countries.  It  will,  as  I  hope,  meet  the  object  of  your  iiupiiry 
on  this  point  to  say  that,  in  every  treaty  of  extradition,  the  United 
States  insists  that  it  can  be  required  to  surrender  a  fugitive  criminal 
only  upon  such  evidence  of  criminality  as,  according  to  the  laws  of  the 
jdace  where  he  shall  be  found,  would  justify  his  apprehension  and  com- 
mitment for  trial  if  the  crime  had  there  been  committed. 

"Tlie  sccontl  question  which  you  i»ropose  is,  what  may  have  been  tiie 
reason  why  the  stii)ulation  which  you  cite,  and  which  you  erroneously 
think  is  found  in  all  extradition  treaties  of  this  Government  conclude*! 
since  August  iil,  l.S.">7,  was  not  inserted  in  the  projected  treaty  sigiu'd, 
but  not  exchangtMl,  between  the  Netiierlands  and  tiie  United  Stales  in 
18.37.  (jrovernor  Marcj'  and  General  Cass,  who  were,  pending  the  nego- 
tiations on  this  question,  the  Secretaries  of  State,  aiid   under  whose 

81U 


§  277.]  EXTRADITION.  [CIIAP.  XI. 

directions  tliey  were  conducted,  Lave  been  dead  for  several  years,  and 
it  does  not  ai)i)ear  IVoni  the  correspondence  in  this  Department  that  the 
provision  cited  by  you  was  at  any  time  under  consideration. 

"The  negotiations  appear  to  have  been  conducted  at  The  Hague;  and 
uuless  the  records  of  the  ministry  there,  or  possibly  the  recollection  of 
tho  distinguished  gentlemen  who  conducted  the  negotiations  on  the 
part  of  the  ]S*etherlands  (if  Mr.  Van  Hall  be  still  living)  can  furnish 
the  answer  to  the  question  why  the  stipulation  to  which  they  did  agree 
was  introduced  instead  of  one  which  does  not  appear  to  have  been  pro- 
posed, 1  shall  have  to  regret  the  inability  of  this  Government  to  aid  iu 
the  solution  of  the  question  which  jou  raise. 

"In  reply  to  your  third  question,  'Whether  there  exists  in  the  United 
States  any  uniform  criminal  procedure,  that  is  to  say,  whether  the  same 
laws  and  rules  are  in  force  in  relation  to  criminal  procedure  in  all  tho 
States,  or  whether  the  laws  concerning  such  procedure  are  different  in 
the  different  States,'  I  have  to  say  that  the  criminal  code  of  the  United 
States  applies  only  to  offenses  defined  by  the  General  Government,  or 
committed  within  its  exclusive  jurisdiction,  or  upon  the  high  seas,  or 
some  navigable  water,  and  that  each  State  establishes  and  regulates  its 
own  criminal  procedure,  as  well  with  respect  to  the  definitions  of  crimes 
as  to  the  mode  of  procedure  against  criminals  and  the  manner  and 
extent  of  punishment." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Westeuberg,  Nov.  12,  1S73.    MSS.  Notes,  Bel- 
gium; For.  Rel.,  1873. 

"  In  cases  of  extradition,  it  la  the  practice  to  furnish  the  parties  au- 
thorized to  receive  the  fugitives  into  custody,  with  the  President's  war- 
rant for  that  purpose,  and  a  duly  authenticated  copy  of  the  indictment 
and  other  necessary  i)apers  in  each  case,  but  in  this  instance  it  has  been 
thought  better,  in  order  to  facilitate  matters,  to  address  the  documents 
which  will  be  required  iu  the  case  to  the  care  of  the  legation,  where 
they  can  be  readily  obtained  by  the  aforementioned  gentlemen  on  their 
arrival  in  London.  A  sealed  envelope  is  therefore  inclosed  herewith, 
containing  the  President's  w\irrant,  and  an  authenticated  copy  of  the 
indictment  and  other  necessary  papers,  together  with  a  number  of  pho- 
tographs of  Cooper.  The  enveloi)e  you  will  deliver  to  the  proper  per- 
sons upon  their  application  to  you." 

Mr.  F.  W.  Seward,  Acting  Sec.  of  State,  to  Mr.  Pierrcpont,  Oct.  JO,  1877.    MSS. 
Inst.,  Gr.  Brit. 

A  fugitive  charged,  under  the  treaty  with  Great  Britain,  with  the 
commission  of  murder  in  Scotland,  apprehended  in  the  United  States 
and  examined  before  a  commissioner,  and  by  him  certified  to  be  proba- 
bly guilty  on  the  evidence  adduced,  should  be  delivered  up  to  justice 
if  the  evidence  upon  which  the  application  is  founded  be  such  as,  accord- 
ing to  the  laws  of  the  place  where  the  fugitive  shall  be  found,  would 
820 


CHAP.  XI.]   EVIDENCE  ON  WHICH  PROCESS  WILL  BE  GRANTED.    [§  277. 

justify  his  or  her  commitment  for  trial  if  the  crime  had  there  been  com- 
mitted. 

4  Op., 201,  Nelson,  1843. 

The  question  of  holding?  the  prisoner  for  further  examination  is  one 
for  the  magistrate  to  determine. 

6  Op., 01,  Gushing,  1853. 

The  sufiBciency  of  the  evidence  is  a  question  for  the  courts,  without 
whose  certificate  of  criminality  the  President  cannot  order  the  extradi- 
tion. 

6  0p.,217,  Cusbing,  1853. 

The  United  States  will  not  demand  from  Great  Britain  the  extradi- 
tion of  an  alleged  fugitive  from  justice  except  on  a  judicial  warrant, 
with  proper  evidence  to  justify  it,  issued  by  the  local  authority  of  the 
State  in  which  the  crime  is  alleged  to  have  been  committed. 
6  Op., 485,  Gushing,  1854. 

The  term  "public  ofiBcers"  in  the  treaty  of  1843  between  the  United 
States  and  France,  or,  as  it  stands  in  the  French  copy,  '■'■  depositaires 
publics,''^  signifies  officers  or  depositaries  of  the  Government  only,  and 
does  not  comprehend  officers  of  a  railroad  company,  notwithstanding 
the  latter  was  authorized  and  subventioned  by  the  French  Government. 

8Op.,10G,  Gushing,  1856. 

It  is  immaterial  whether  the  person  charged  left  the  demanding  coun- 
try under  apprehension  of  detection,  or  for  some  other  reason. 

8  Op.,30G,  Gushing,  1857. 

To  prove  desertion  the  ship's  roll  must  be  exhibited,  containing  the 
deserter's  name.    A  consul's  certificate  will  not  do. 

9  Op.,  96,  Black,  1857. 

It  is  not  necessary  that  the  proceedings  be  either  carried  on  or  ap- 
proved hx  the  attorney  of  the  United  States  for  the  proper  district. 

9  Op., 246,  Black,  18.'>8. 

Attorneys  of  the  United  States  are  not  required  to  appear  for  for- 
eign Governments  in  extradition  cases. 

9  Op., 497,  Black,  1860. 

In  order  to  be  admissible  at  the  hearing,  the  certificate,  under  the  act 
of  18G0  (12  Stat.  L.,  8.'3  ;  Rev.  Stat.,  §  o27J),  should  sliow  upon  its  face 
that  the  officer  who  made  it  is  the  principal  dii)lomatic  or  consular  ollicer 
of  the  United  States  resident  in  the  country  making  the  demand  of  ex- 
tradition, and  shoidd  (h'clan^  that  the  docMuiients  to  which  it  is  attaclied 
arc  legally  authcntic^atcd,  ac<;()rdiiig  to  the  laws  of  the  <'(Hiiitry  IVoin 
which  the  fugitive  escaped. 

10  Op.,  501,  C<ifT<-y,  1863.     Sco  Fanv,,  in  re,  7  lUatch.,  345. 

821 


§  277.]  EXTRADITION.  [CHAP.  XI. 

Evidence  of  insanity  is  admissible  in  extradition  proceedings  before  a 
United  States  commissioner,  to  explain  the  evidence  adduced  against 
the  person  charged,  where  it  is  made  the  duty  of  the  commissioner  to 
decide  upon  the  sufliciency  of  the  evidence  so  adduced. 

16  Op.,  G4'2,  Phillip.s,  1879. 

Where  depositions  from  abroad  are  put  in  evidence,  under  the  act  of 
18G0,  where  the  charge  is  forgery,  and  it  appears  by  them  that  the 
forged  papers  were  produced  before  and  deposed  to  by  the  witnesses 
giving  the  depositions,  it  is  not  necessary  that  the  forged  papers  should 
be  produced  here  before  the  commissioner. 

Farez,  in  re,  7  Blatcb.,  345. 

After  the  above  rulings,  section  5271,  Revised  Statutes,  was  modified 
by  act  of  June  10,  1870.     Revised  Statutes  (ed.  1878),  section  5271. 
See  Fowler,  in  re,  21  Blatcb.,  300, 

The  defendant  is  entitled  to  produce  evidence  to  show  his  innocence. 

Macdonnell,  in  re,  15  Fed.  Rep.,  332  ;   21  Blatcb.,  300 ;  Catlow,  in  re,  16  Op., 
642,  Pbillips,  1879. 

On  an  investigation  before  a  commissioner,  sitting  in  the  Stateof  New 
York,  in  an  extradition  case  under  said  convention,  the  offender  has  a 
right  to  be  examined  as  a  witness  in  his  own  behalf. 

Farez,  in  re,  7  Blatcb.,  315;  approved  in  S.  C.    7  Blatcb.,  491. 

And  this  is  the  case  wherever  such  examination  is  permitted  by  the 
local  laws. 

Dugan,  in  re,  2  Low.,  267. 

Under  the  convention  for  extradition  between  the  United  States  and 
Switzerland,  which  provides  for  the  delivery  of  persons  charged  with 
certain  crimes  "  when  these  crimes  are  subject  to  infamous  punish- 
ment," it  is  sufficient  if  the  crime  be  subject  to  infamous  punishment  in 
the  country  where  it  was  committed  without  its  being  also  subject  to 
infamous  punishment  in  the  country  from  which  the  extradition  is  de- 
manded. 

Fare/,  in  re,  7  Blatcb.,  345. 

Under  section  2  of  the  act  of  1848  (9  Stat.  L.,  302,  Rev.  Stat.,  §  5271)  as 
supplemented  by  the  act  of  1800  (12  Stat.  L.,  84),  copies  of  depositions 
taken  in  London,  before  the  lord  mayor  of  London,  and  certified  under 
his  hand  to  be  copies  of  the  depositions  on  which  he  issued  a  war- 
rant of  arrest  against  the  person  charged,  and  farther  certified  by 
the  minister  of  the  United  States  in  Great  Britain  to  be  so  authenti- 
cated as  to  entitle  them  to  be  received  for  similar  puri)oses  by  the  tri- 
bunals of  Great  Britain,  are  competent  evidence  in  an  inquiry,  under  a 
warrant  of  arrest,  in  an  extradition  case. 
Macdounell,  in  re,  11  Blatcb.,  170. 
822 


CHAP.  XI.]  PRACTICE    AS    TO    REVIEW.  [§  278. 

Depositions  are  to  be  allowed  the  same  weight  as  if  the  deponent 
were  present  at  the  hearing. 

Farez'  case,  7  Blatcb.,  491;  2  Abb.  U.  S.,  34G.     SeeWadgo  in  re,  10  Fed.  Rep., 
332;  21  Blatcb.,  300. 

Verified  translations  of  foreign  documents  should  be  produced. 

Henrich  in  re,  5  Blatcb.,  414  ;  Piot,  in  re,  48  L.  T.  (N.  S.),  120. 

As  to  the  degree  of  evidence  required,  the  law  is  well  stated  by  Judge 
Blatchford  (7  Blatch.,  481),  as  follows:  "It  was  urged  at  the  hearing,  on 
the  strength  of  an  observation  made  by  Mr.  Justice  Nelson,  in  the  case  of 
ex  parte  Kaine  (3  Blatch.,  1),  that  the  evidence  must  be  so  full,  as  in  his 
judgment,  if  he  were  sitting  on  the  final  trial  of  the  case,  to  warrant  a 
conviction  of  the  prisoner.  AVhile  I  always  hesitate  to  differ  with  Mr. 
Justice  Kelson  in  opinion,  I  am  not  prei)ared  to  adopt  this  view.  It 
seems  to  me  to  be  in  coutlict  with  the  decision  in  the  case  of  Burr.  In 
that  case  Chief  Justice  Marshall  sat  as  a  committing-  magistrate  on  the 
question  as  to  whether  Burr  should  be  committed  for  trial  lor  the  crime 
of  setting  on  foot  an  expedition  against  the  territories  of  a  nation  at 
peace  with  the  United  States.  The  Chief  Justice  said  (I  Burr's  Tr., 
11):  'On  an  application  of  this  kind,  I  certainly  should  not  require  the 
proof  which  would  be  necessary  to  convict  the  person  to  be  committed, 
on  a  trial  in  chief,  nor  should  I  even  rt  quire  that  which  should  abso- 
lutely convince  my  own  mind  of  the  guili  of  the  accused;  but  I  ought 
to  require,  and  I  should  require,  that  probable  cau.se  be  sliown  ;  and  I 
under.stand  probable  cause  to  be  a  case  made  out  by  proof  furnishing 
good  reason  to  believe  that  the  crime  alleged  had  been  committed  by 
the  i)erson  charged  with  having  committed  it.'  The  Chief  Justice  acted 
upon  that  view,  and  committed  Colonel  Burr  for  trial.  The  convention, 
in  the  present  case,  says  that  the  commission  of  the  crime  must  be  so 
established  as  to  justify  the  commitment  of  the  accused  for  trial  if  the 
crime  had  been  committed  here.  The  question  before  Chief  Justice 
Marshall,  in  the  case  of  Burr,  was  merely  the  question  as  to  the  extent 
to  which  the  fact  of  the  commission  of  the  crime  must  be  established. 
To  say  that  the  evidence  must  be  such  as  to  require  the  conviction  of 
the  prisoner  if  he  were  on  trial  before  a  petit  jury  would,  if  applied  to 
cases  of  extradition,  work  great  injustice." 


XI.  PRACTICE  AS  TO  REVIEW. 

§  278. 

The  circuit  courts  ordinarily  do  not  review  the  judgments  of  commis- 
sioner.'^ on  matters  of  fact.  Sec  Kaine'.s  case,  3  Blatch.,  1  ;  Van  Aernam's 
ca.se,  3  Blatch.,  100;  Henrich,  in  re,  5  Blatch.,  414,  where  the  practice 
seems  unsettled.  But  in  Stupp's  ca.se  {V2  Blatch.,  noi)  Judge  Blatch- 
ford hehl  that  there  could  be,  no  reviewal  on  the  effect  of  the  evidence 
when  legally  admitted.  This  is  aflinned  in  VandcrvcliJcn's  case.  (14 
lilatch.,  137.')  In  Wiegand's  case  (14  Blatch.,  370)  Ulatchfonl,  .1.,  said  : 
"  In  a  ca.se  of  extradition  before  a  (tommissioiu'r,  when  hv  has  before 
him  documentary  evidence  from  abroad,  properly  authenticated  under 
the  act  of  Congress,  and  such  is  made  evidence  by  such  act,  it  is  the  ju- 
dicial duty  of  the  commiissioner  to  judge  of  the  ellect  of  such  evidence, 
and  neither  the  duty  nor  the  power  to  review  his  action  tlioreon  is  im- 

823 


§  278.]  EXTRADITIOX.  [CWAV.  XT. 

poseil  on  any  Judicial  ollicci-.  This  ])iovini'0  of  iho  commissioner  ex- 
ttMuled  lo  a  (li'ti-rmination  as  to  wiictlu'r  llie  embezzlenu'nt  was  a  con- 
tinuing emhczzlciiicnt." 

In  (jnestions  of  law  tlicic  will  he  no  reversal  for  formal  errors,  but  only 
for  substantial  error  in  law,  or  for  such  manifest  error  in  i)roce(lure  as 
wouUl  warrant  a  court  of  ai)i)eals  in  reversing',  (llenrich  in  re,  f) 
Blatcb.  0.  C,  414.)  And,  as  was  subse«iuently  ruled,  it  is  not  enough 
to  charge  a  conclusion  at  law,  c.p.,  "forgery."  The  time  and  place  and 
nature  of  the  crime  and  its  subject-nnitter  should  be  set  out.  (Fare// 
case,  7  Dlatch.  U.  S.,  35.)  Nor  will  the  court  discharge  absolutely  on  ac- 
count of  an  error  of  the  commissioner  in  adnnssiou  or  rejection  of  evi- 
dence. (Macdonnell,  i/i  re,  11  Blatch.,  7!).)  The  practice  is,  in  such 
case,  simply  to  discharge  from  the  first  commitment,  leaving  the  exam- 
ination to  proceed  anew.     (Farez'  case,  iit  supra.) 

The  Supreme  Court  has  not  jurisdiction  to  review  the  action  of  a  dis- 
trict judge  of  the  United  States  in  committing  a  ])crson  tor  extradition 
under  the  French  treaty  of  November  9,  1843. 

In  re  Metzger,  5  How.,  176. 

The  issue  of  a  warrant  under  article  9  of  the  consular  convention  with 
France  of  1788  (annulled  by  act  of  1798,  1  Stat.,  578),  is  within  the  dis- 
cretion of  the  district  judge,  and  such  discretion  cannot  be  interfered 
with  by  the  Supreme  Court. 

1  Op.,  55,  Bradford,  171)5. 

It  is  the  right  of  the  United  States  marshal  to  refuse  to  have  the 
body  before  the  State  court,  and  it  is  the  duty  of  the  courts  and  other 
authorities  of  the  United  States  to  protect  the  marshal  in  such  refusal 
by  all  means  known  to  the  laws.  Where  a  commissioner  of  the  United 
States  has  made  return  according  to  law  that  an  alleged  fugitive  from 
justice  is  subject  to  extradition,  the  President  should  order  the  extradi- 
tion, notwithstanding  any  conflicting  proceedings  pending  in  a  State 
court. 

G  Op.,  270,  Cashing,  1854. 

"TheinsufiQciency  of  an  indictment  under  the  10th  articleof  the  Treaty 
of  TTashington  as  proof  of  criminality  against  a  party  claimed  as  a  fugi- 
tive from  justice  in  Great  Britain,  has  heretofore  been  maintained  by  the 
Imperial  Government  under  the  act  of  Parliament  for  carrying  the  treaty 
into  effect.  The  Department  understands  from  a  note  of  Lord  Xapier, 
of  the  20th  instant,  referring  to  the  case  of  Wood,  that  the  Canadian 
authorities  take  the  same  pos;ition  under  the  act  of  the  parliament  of 
that  province  entitled  12  Vict.,  chap.  xix. 

"Mr.  Everett,  when  United  States  minister  in  England,  was  instructed 
to  maintain  the  sufficiency  of  an  indictment,  and  he  accordingly  ad- 
dressed a  note  to  Lord  Aberdeen  to  this  effect,  requesting  that  the  act 
of  Parliament  might  be  altered  accordingly.    That  change,  however, 

824 


CHAr.  XI.]      PRACTICt:  AS  TO  HABEAS  CORPUS.        [§  279. 

lias  never  been  made,  nor  can  it  be  ascertained  that  the  subject  has 
since  been  pursued.    The  escape  of  Wood  Is  to  be  regretted." 

Mr.  Appleton,  Acting  Sec.  of  State,  to  Mr.  Ilowanl,  Jnne  22, 1857.  MSS.  Dom. 
Let. 

XII.  PRACTICE  AS  TO  HABEAS  CORPUS. 

§  279. 

Prisoners  detained  as  fugitives  are  entitled  to  have  the  case  against 
tbem  tested  by  habeas  corpus  in  a  Federal  court  (see  Whart.  Or.  PI.  and 
Pr.,  §  993) ;  though  release  will  not  bo  granted  merely  because  the 
prisoner  was  brought  within  the  jurisdiction  by  kidnapping. 

Ker,  in  re,  18  Fed.  Ptcp.,  167.     Whart.  Cr.  PI.  &  Pr.,  §  27, 

The  right  to  review  has  been  constantly  asserted  by  State  courts. 

People  V.  Curtis,  50  N.  Y.,  321 ;  Peoplor.  Fisk,  45  How.  Pr.,  29G  ;  Lagrave.itt  re, 
45  How.  Pr.,  301 ;  Com.  v.  Deacou,  10  Serg.  &  R.  125  :  Com.  v.Hawes,  13 
Biisli.,  637;  Butler,  ex  parte,  IS  k\h.  L.  J.,  3G9. 

But  such  process  cannot  test  the  question  of  the  fraudulencyor  illegal- 
ity of  the  process  by  which  the  prisoner  was  brought  within  the  juris- 
diction. 

Adriance  v.  Lagrave,  59  N.  Y.,  110. 

In  Robb  V.  Connolly  (111  IL  S.,  024),  the  question  was  whether  a 
State  court  in  California  had  jurisdiction  to  issue  a  writ  of  habeas  corpus 
to  examine  the  question  of  the  detention  of  an  alleged  fugitive  from  the 
State  of  Oregon  by  an  agent  of  the  State  of  Oregon.  In  the  course  of 
his  opinion,  Uarlan,  J.,  said  : 

"  Upon  the  Sfate  courts,  equally  with  the  courts  of  the  Union,  rests 
the  obligation  to  guard,  enforce,  and  protect  every  right  granted  or  se- 
cured by  the  Constitution  of  the  United  States  and  the  laws  made  in 
pursuance  thereof,  whenever  those  rights  are  involved  in  any  suit  or 
proceeding  before  them  ;  for  the  judges  of  the  State  courts  are  required 
to  take  an  oath  to  support  that  Constitution  (and  they  are  bound  by  it), 
and  the  laws  of  the  United  States,  made  in  ])ursuance  thereof,  and  all 
treaties  made  under  their  authority,  as  the  supreme  law  of  the  land, 
'anything  in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding.' If  they  fail  therein,  and  withhold  or  d(Miy  rights,  priv- 
ileges, or  immunities  secured  by  the  Constitution  and  laws  of  the  United 
States,  the  party  aggrieved  may  bring  the  case  from  the  highest  court 
in  the  State  in  which  the  question  could  be  decided  to  this  court  for 
final  and  conclusive  determination. 

"  The  recognition,  therefore,  of  the  authority  of  a  State  court,  or  of 
one  of  its  judges,  upon  writ  of  habeas  corpus,  to  pass  upon  the  legality 
of  the  impri.soiiiiHMit,  within  the  t^Tiitory  of  that  State,  of  a  person  held 
in  custody,  otlicrwise  than  under  the  judgment  or  ortlers  of  the  juilic.ial 
tribunals  of  the  United  States,  or  by  the  order  of  a  commissioner  of  a 
circuit  court,  or  by  ofTlcers  of  the  United  States  acting  under  their  laws, 

825 


§  279.]  EXTRADITION.  [CHAP.  XL 

caiiuot  bo  (li'iiied  nuTcly  bocaiiso  tlie  i)roceeclings  involve  the  dotorini- 
natiou  of  ri«;l)ts,  privileges,  or  iinnin:iities  deiived  from  the  nation,  or 
require  a  construction  of  the  Constitution  and  laws  of  the  United  States. 
Congress  has  not  undertaken  to  invest  the  Judicial  tribunals  of  the 
United  States  with  exclusive  jurisdiction  of  issuing  writs  of  habeas 
corpus  in  proceedings  for  the  arrest  of  fugitives  from  justice  and  their 
delivery  to  the  authorities  of  the  State  in  which  they  stand  charged 
with  crime." 

The  practice  of  issuing  such  writs  by  State  courts  is  inconvenient  if 
not  unconstitutional. 

Mr.  Bnclianan,  See.  of  Stato,  to  Mr.  Duller,  district  attorney  iu  New  York,  Mar. 
2:5,  1847  ;  MSS.  Doin.  Let. ;  and  to  Mr.  Durant,  district  attorney  in  Now 
Orleans,  May  20,  1847  ;  ibid. 

Mr.  Cushing,  when  Attorney-General,  in  1853  (0  Op.,  237),  denied  the 
right  of  a  State  court  to  take  up  the  case  by  habeas  corpus  when  under 
examination  by  a  commissioner  of  the  United  States. 

The  following  statement  of  the  practice  is  by  Judge  Woodruff,  in 
Macdonnell,  in  re  (11  Blatch.,  79) : 

"It  was  held,  and  held  successively  for  many  years  {in  re  Veremaitre,  9  N.  Y.  Leg. 
Obs.,  129  ;  in  re  Kaine,  10  ibid.,  257  ;  in  re  Heilbrouu,  VI  ibid.,  fiu ;  ex  parte  Van  Aeniani, 
3  Blatch.  C.  C,  ICO),  that  if  it  appeared  to  the  .judge  or  to  the  court  issuing  tho 
writs  that  the  commissioner  had  acquired  jurisdiction,  by  a  conformity  of  the  i)ro- 
ceeding  to  tho  requirements  of  tho  treaty  and  the  acts  of  Congress,  and  that  he  had 
uot  exceeded  his  jurisdiction,  that  was  an  end  to  inquiry  ;  that  whether  the  evidence 
received  by  him  was  sufBcient  or  insufficient  was  a  question  to  be  determined  by  him  ; 
that  no  tribunal  had  been  provided  by  the  treaty,  and  no  jurisdiction  had  been  given 
by  any  act  of  Congress  to  any  judge,  magistrate,  or  court,  to  review  that  decision  ; 
that  the  only  review  possible  was  a  review  by  the  Executive,  to  whom  the  proceedings 
had  before  tho  commissioner  were  to  be  returned  ;  that  the  Executive  had  power  to 
examine  for  himself,  and  determine  whether  a  case  had  been  made  within  the  treaty, 
and  whether  a  case  had  been  made  which  called  upon  him,  as  the  Executive  of  the 
Government  of  the  United  States,  to  surrender  tho  fugitive  ;  and  that  as  this  special 
jurisdiction  in  a  special  proceeding  not  theretofore  within  the  jurisdiction,  original 
01  appellate,  of  any  court  or  magistrate  of  tho  United  States,  had  been  conferred  by 
law  upon  the  magistrate  acting  under  the  act  of  Congress,  and  as  it  was  made  his  duty 
to  certify  his  conclusions  as  the  basis  of  executive  action,  without  giving  any  right  of 
appeal,  in  any  form,  to  any  other  magistrate  or  to  any  court,  there  was  no  api)eal  and 
no  supervisory  authority  to  be  exercised,  except  by  the  Executive. 

"The  next  stage  in  the  history  contained  an  opinion  which  is  supposed  to  go  one  step 
further.  We  may  say,  without  disrespect  to  the  decision  itself,  in  any  wise,  that  tho 
decision  in  which  tho  opinion  was  pronounced  (in  re  Kaine,  3  Blatch.  C.  C,  1,4), 
had  other  grounds  upon  which  it  was  deemed  to  be  called  for.  The  decision  was,  that 
the  commissioner  never  acquired  jurisdiction  ;  but  the  opinion,  nevertheless,  went 
further,  and  held  that,  in  the  case  under  consideration,  there  was  no  competent  evi- 
dence before  the  commissioner,  that  is  to  say,  there  was  no  legal  evidence  upon  which 
the  commissioner  could  act,  for,  if  the  evidence  was  not  competent,  it  was  not  legal; 
that,  if  there  was  no  competent  evidence  before  the  commissioner,  the  proceedings  be- 
fore tho  commissioner  were  to  be  treated,  whenever  presented  to  any  other  tribunal, 
as  an  arbitrary  act  of  commitment,  upon  mere  complaint ;  and  that  the  question  be- 
came, therefore,  a  question  of  law,  not  a  question  of  fact,  before  the  court,  on  haheat 

82G 


CHAP.  XI.]  PRACTICE    AS    TO    SURRENDER.  [§  280. 

corjms,  whether  a  commissioucr  couhl,  niion  coniphxint,  issue  a  warrant  of  arrest,  and, 
upon  the  appeai'auee  of  the  prisoner  before  him,  commit  him  for  surrender.  With  that 
view  of  the  subject,  and  with  theassertion  of  the  right  to  inquire,  upon  haheas  torpus, 
whether  the  proceedings  of  the  commissioner  had  been,  in  that  sense,  legal,  or,  iu 
other  words,  whether  he  had  not  departed  from  his  jurisdiction,  which  was  a  juris- 
diction to  inquire  into  and  ascertain  facts,  and  not  to  declare  facts  without  any  evi- 
dence before  him,  we  are  not  disposed,  at  present,  to  raise  any  controversy. 

"The  next  step  in  the  consideration  of  this  subject  elicited  the  opinion  {in  rpHenrich, 
5  Blatch.  C.  C.,414)  that  the  court,  acting  iu  the  proceedings  instituted  by  habeas 
corpus  and  certiorari,  was  not  confined  to  the  mere  inquiry  whether  there  was  any 
evidence  ;  but  that,  if  it  could  see  that  there  was  a  substantial  defect  of  evidence,  it 
might  and  ought,  not  necessarily  to  discharge  the  prisoner,  but  to  hold  that  the  war- 
rant of  commitment  was  illegally  granted. 

'•That  view  of  the  subject  was  followed,  in  its  next  step,  or  perhaps  iu  its  conse- 
quence, by  the  holding  {in  re  Farez,  7  Blatch.  C.  C,  345,  491),  that  it  was  not  the 
duty  of  the  court  to  discharge  when  an  error,  iu  rejecting  evidence  for  the  prisoner 
had  been  committed,  but  to  remand,  that  the  error  might  be  corrected,  and  the  proofs 
be  continued,  if  it  was  so  desired,  to  the  end  that  the  I'acts  might  be  ascertaiued,  and 
that,  if  the  prosecuting  Goverument  were  able,  it  might  yet  establish  a  case  against 
the  prisoner.  Indeed,  in  the  previous  case  to  which  we  have  referred,  to  wit,  where 
the  judge  was  of  oiiinion  that  there  was  no  legal  evidence  {in  re  Kaiue,  3  Blatch.  C. 
C,  1-4),  he  offered,  upon  announcing  the  conclusion  he  had  reached,  to  detain  the  pris- 
oner, to  the  end  that  the  inquiry  might  proceed,  the  defects  be  supplied,  and  proper 
and  competent  evidence  be  produced  before  him." 

XIII.  PRACTICE  AS  TO  SUEBENDEB. 

§280. 

The  President  will  not  issue  his  warrant  for  the  surrender  of  fugitives, 
under  the  tenth  article  of  the  treaty  of  1842  with  Great  Britain,  where 
the  record  docs  not  exhibit  the  fact  that  an  offense  within  the  terms  of 
the  treaty  has  been  committed,  nor  that  tliere  is  such  evidence  of  crimi- 
nality as,  according  to  the  laws  of  the  place  where  the  alleged  fugitives 
have  been  found,  would  justify  their  apprehension  and  commitment  for 
trial  if  the  crime  had  been  there  committed,  nor  that  any  complaint 
has  been  made  to  any  magistrate  of  the  United  States  by  whom  such 
evidence  had  been  heard. 

4  Op.,  240,  Nelson,  1843. 

The  mode  provided  for  the  surrender  of  persons  accused  of  the  crimes 
mentioned  in  article  1  of  the  treaty  with  France  is  by  requisitions  made 
in  the  nam*;  of  the  respective  i)arlies  through  the  medium  of  their  re- 
spective dii)loinatic  agents. 

The  surrender  will  be  made  only  when  tlie  fact  of  the  commission  of 

the  crime  shall   be  so  established   that,  according  to  the  laws  of  the 

country  in  which  the  fugitive,  orlhe  jjerson  so  accused,  shall  be  l()und,his 

or  iier  appi-eheiisioM  and  commit iiieiit  for  trial  would  be  instilled  if  the 

crime  had  been  there  (^omiiiitti'd.     The  rule  of  evidence  is  i)rescribed  in 

the  treaty. 

4  Op.,  330,  Nelson,  1844. 

827 


§  281.]  EXTRADITION.  [CIIAP.  XI. 

It  is  tbe  duty  of  tlie  United  States  to  provide  lor  the  imprisonment 
of  persons  whose  extradition  is  asked  for  by  a  foreign  Government. 

8  Op.,  396,  Ciishiug,  1857, 

Under  the  treaty  witli  Spain,  and  the  act  of  Congress  which  was  made 
to  carry  out  that  and  otlier  treaties  of  the  same  kind,  the  apprehension 
and  delivery  of  deserting  Spanish  seamen  is  a  judicial  duty;  and  the 
State  Department  cannot  change  what  a  judge  has  done. 

9  Op.,  9C),  Black,  18r>7. 

The  extradition  hiws  do  not  require  the  proceedings  against  a  foreign 
criminal  or  a  deserting  seaman  to  be  carried  on,  or  approved  by,  the 
attorney  of  the  United  States  for  the  proper  district. 
9  Op.,  246,  Black,  1«58. 

The  act  of  Congress  does  not  require  or  authorize  the  issuing  of  any 
warrant  by  the  State  Department  in  an  extradition  case,  until  the  facts 
are  judicially  ascertained  and  certified. 

9  Op.,  379,  Black,  1859. 

"  The  ground  upon  which  the  occasional  refusal  on  the  part  of  this 
Government  to  deliver  up  its  own  citizens  rests,  is  not,  as  you  infer,  the 
absence  of  reciprocity,  but  its  indisposition  to  subject  citizens  of  the 
United  States  to  modes  of  trial  and  punishment  unknown  to  our  laws 
and  held  in  abhorrence  alike  by  the  Government  and  people  of  the 
United  States." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Jewell,  May  9,  1874,     MSS.  Inst.,  Enssia. 

It  is  within  the  discretion  of  the  President  to  refuse  to  surrender 
even  after  the  accused  has  been  remanded  on  hahcas  corpus.  •'  Refer- 
ring to  your  note  of  the  14th  instant,  and  the  inclosed  argument  of 
Mr.  Irving,  representing  the  British  Columbia  Government,  relative  to 
the  extradition  of  Edward  Kelly,  I  have  the  honor  to  inform  you  that 
after  a  careful  consideration  of  the  proceedings  certified  by  the  com- 
missioner in  the  last  examination  of  the  prisoner,  as  well  as  of  the  ar- 
gument of  ^Ir.  Irving,  the  President  is  of  opinion  that  the  evidence 
produced  is  not  sufQcient  to  justify  the  issuance  of  a  warrant  of  sur- 
render, the  doubts  previously  entertained  by  him  not  having  been 
removed." 

Mr.  Bayard,  Sec.  of  State,  to  Mr.  West,  Apr.  15,  188G.     MSS.  Notes,  Gr.  Brit. 
But  see  6  Op.,  71,  Gushing,  1853. 

XIV.  EXPENSES. 
§  281. 

"  Unless  the  crime  is  one  in  violation  of  a  law  of  the  United  States, 
such  as  piracy,  murder  on  board  of  vessels  of  the  United  States  or  in 
arsenals  and  dock-yards,  etc.,  the  expense  will  have  to  borne  by  the 
828 


CUAP.  Xf.]  EXPENSES.  [§281. 

party  lualdug  the  reqiiisitiou.  A  person  who  can  identify  the  fugitive 
must  be  deputed  to  do  so,  aud  must  furuisli  such  a  deposition  or  deposi- 
tions as  will  clearly  establish  the  circumstances  of  the  crime.  This  per- 
son must  also  be  authorized  to  receive  the  fugitive  if  his  extradition 
should  be  granted." 

Mr.  Fish,  Sec.  of  State,  to  Mr.  Hammoucl,  Feb.  19,  1870.     MSS.  Dom.  Let. 

"  When  the  fugitive  is  charged  with  an  offense  agaiust  the  laws  of 
the  United  States  and  his  surrender  is  sought  for  the  purpose  of  trial 
and  puuishmeut  under  those  laws,  the  expenses  attending  his  extradi- 
tion are  borne  by  the  United  States.  It  is  otherwise,  however,  where 
the  fugitive  is  charged,  as  in  the  case  of  Fraser,  with  an  offense  against 
the  laws  of  a  particular  State,  and  the  extradition  is  demanded  by  this 
Government  at  the  request  of  the  State  authorities.  In  the  latter  case 
the  expenses  are  borne  by  the  State  at  whose  instance  the  surrender  of 
the  fugitive  is  asked." 

Mr.  Fisb,  Sec.  of  State,  to  Mr.  Harvey,  June  18, 1874.    MSS.  Dom.  Let.     See  Mr. 
Fisli  to  Mr.  Williams,  Feb.  4, 1875.     Ibid. 

"  The  offense,  with  the  commission  of  which  the  fugitive  in  this  case 
stood  charged,  was  one  against  the  laws  of  Washington  Territory.  In 
cases  of  that  character,  where  this  Department  is  requested  by  the  ex- 
ecutive authority  of  a  State  or  Territory  to  demand  the  extradition  of  a 
fugitive  from  Justice,  charged  with  an  offense  against  the  local  laws  of 
such  State  or  Territory,  the  practice  is  to  require  that  the  expenses  at- 
tending the  arrest,  examination,  and  safe-keeping  of  such  fugitive  shall 
be  borne  b^'  the  State  or  Territory  applying  for  the  extradition.  A  small 
appropriation  is  made  by  Congress  to  defray  the  expenses  of  bringing 
Lome  criminals  from  foreign  countries." 

Mr.  Cadwalader,  Acting  Sec.  of  State,  to  Mr.  Ferry,  Aug.  21, 1875.    MSS.  Dom. 
Let. 

"  There  is  no  law  authorizing  the  payment  of  such  expenses  by  the 
United  States.  When  the  offense  is  against  the  laws  of  a  State,  the 
expenses  are  to  be  borne  by  the  State  at  whose  request  the  surrender 
of  the  fugitive  criminal  is  demanded  by  the  Federal  Government.  The 
only  exception  to  this  rule  is  where  the  offense  charged  is  against  the 
laws  of  the  United  States,  and  the  prosecution  is  instituted  by  the  au- 
thorities of  the  United  Stites." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Gordou,  Feb.  IH,  1878.     MSS.  Dom.  Let. 

"I  have  to  acknowledge  the  n.'ceipt  of  i\Ir.  Welsh's  No.  327,  of  the 
29th  of  July  last,  inclosing  a  copy  of  a  note  dated  the  23d  of  the  same 
month,  from  the  Marquis  of  Salisbury,  in  which  it  is  jjrojjosed  that  this 
Government  .shall  enter  i.ito  an  arrangement  with  that  of  Great  Britain 
by  which  an  account  shall  be  rendered  and  payment  made  of  exiJcnses 

829 


-§281.]  EXTRADITIOX.  [CUAP.  XI. 

incurred  iu  connection  with  cases  of  extradition  once  annually,  at  tbo 
most  convenient  period  of  tlie  financial  year. 

"In  reply,  I  have  to  say  that  the  treaty  of  1842,  Article  X,  provides 
that  'the  expense  of  such  apprehension  and  delivery  shall  be  borne 
and  defrayed  by  the  party  who  makes  the  requisition  and  receives  the 
fugitive.' 

'•The  statutory  provisions  in  regard  to  extradition  arc  silent  on  the 
question  of  expenses, 

"Xo  legal  objections  are  perceived  to  entering  into  such  an  arrange- 
ment as  that  i^roposed  by  the  jNIarquis  of  Salisbury. 

"An  inconvenience,  however,  might  arise  from  such  an  arrangement 
as  the  result  of  the  following  circumstances: 

"There  are  very  few  requisitions  for  ofienses  against  the  Federal  laws. 
Each  State  and  Territory  is  required  to  bear  the  expenses  of  requisi- 
tion and  extradition  in  each  case  presented  by  it  for  the  extradition  of 
fugitive  criminals  from  the  justice  of  such  State  or  Territory. 

"The  expenses  which  this  Government  would  be  called  upon  bj^ 
Great  Britain  to  pay  are  such  as  are  usually  incurred  about  Scotland 
Yard,  such  as  services  of  detectives,  the  expenses  of  keeping  prisoners, 
etc. 

"These  expenses  the  agent  appointed  by  the  President,  on  the  nom- 
ination of  the  executive  of  the  State,  is  expected  to  pay  at  the  time  of 
taking  charge  of  the  fugitive.  If,  in  any  case,  they  should  be  left  un- 
paid, as  iu  some  few  cases  they  have  been,  this  Department  might  be 
called  upon  to  audit  and  pay  a  considerable  sum  at  the  end  of  the  year 
without  any  fund  under  its  control  from  which  it  could  i)roperly  pay, 
and  might,  moreover,  find  it  difficult  to  get  reimbursement  from  the 
State.  As  the  matter  is  now.  each  case  can  be  scrutinized  on  its  own 
merits  and  at  the  moment. 

"In  view  of  these  circumstances  this  Department  does  not  consider 
it  expedient  to  enter  into  the  arrangement  proposed  iu  the  Marquis  of 
Salisbury's  note  above  mentioned.  I  will  thank  you  to  communicate 
this  conclusion  to  Her  Majesty's  Government." 

Mr.  Hnntcr,  Acting  Sec.  of  State,  to  Mr.  Hoppin,  Sept.  15,  1879.     MSS.  Inst., 
Gr.  Brit. ;  For.  Rcl.,  IbTO. 

"I  have  to  acknowledge  the  receipt  of  your  dispatch  No.  128,  of  the 
27th  of  December  last,  referring  to  Mr.  Welsh's  No.  327,  of  the  2'>th  of 
July  last,  and  to  the  instruction  No.  371,  of  the  15th  of  September  last, 
of  this  Department  upon  the  subject  of  the  method  of  settling  accounts 
of  extradition  expenses.  You  also  inclose  a  copy  of  your  correspond- 
ence with  the  British  foreign  office  upon  the  subject  in  question  since 
the  date  last  mentioned,  from  which  it  api^ears  that  in  consequence  of 
the  divergence  of  opinion  as  to  the  most  convenient  method  of  effect- 
ing the  payment  of  extradition  expenses  expressed  by  the  various  Gov- 
ernments, to  which  the  Marquis  of  Salisbury  had  addressed  communi- 
830 


CHAP.  XI.]  EXrEXSES.  [§  281. 

cations  ou  the  subject,  bis  lordship  had  reached  the  couchisiou  that  it 
would  be  best  to  adhere  to  the  plau  hitlierto  pursued,  preferring  separ- 
ately each  claim  arising  on  a  case  of  extradition,  and  he  therefore  asks 
this  Government  to  accede  to  the  proposed  arrangement. 

"In  reply,  I  have  to  instruct  you  to  inform  Her  Majesty's  Govern- 
ment that  this  Department  approves  of  the  plan  proposed,  with  the 
understanding,  however,  that  the  arrangement  shall  not  i^reclude  the 
settlement  of  expenses  on  the  spot  by  the  agent  sent  to  receive  the 
prisoner,  or  make  it  obligatory  that  the  claim  should  be  formally  pre- 
ferred by  one  Government  to  the  other,  and  so  settled.  The  few  casev- 
where  the  expenses  are  not  paid  on  the  spot  would,  of  course,  it  is 
thought  by  this  Department,  be  properly  matters  for  adjustment  be- 
tween the  two  Governments." 

Mr.  Evarts,  Sec.  of  State,  to  Mr.  Iloppin,  Mar.  25,  1880.    MSS.  Iust.,Gr.  Brit.; 
For.  Eel.,  1880. 

"All  accounts  in  extradition  cases  where  the  fees  are  to  be  paid  by 
the  Secretary  of  State,  under  the  provisions  of  the  act  of  Congress  of 
the  3d  of  August,  1882,  should  be  made  out  and  forwarded  in  accord- 
ance with  the  ])rovisions  of  that  act.  The  fee  bills  of  the  several  officers 
.of  the  United  States  in  this  case,  including  your  own,  ajipear  to  be  sub- 
stantially in  such  accord,  and  no  objection  is  now  made  to  these.  The 
translator's  bill,  however,  is  no  proper  part  of  the  extradition  expenses; 
and  the  Departaient  does  not  feel  authorized  under  the  act  in  question 
to  pay  it.  It  is  the  business  of  the  proceeding  or  demanding  Govern 
ment  to  adduce  the  evidence  and  bring  forth  the  testimonj'  upon  which 
it  expects  to  establish  the  criminality  of  the  accused,  and  tliis  must  be 
put  forward  in  such  form  and  language  as  will  be  intelligible  to  and 
convenient  for  the  court.  In  other  words,  it  must  be  ready  for  imme- 
diate use—  instantly  available.  The  bill  in  this  case,  moreover,  appears 
to  be  extremely  large." 

Mr.  Frelinghuysen,  Sec.  of  State,  to  Mr.  Patterson,  Ai)r.  2,  1884.     MSS.  Dom. 
Let. 

By  treaty  between  the  United  States  and  Great  Britain,  the  expense 
attending  proceedings  in  extradition  is  to  be  borne  by  the  Government 
making  the  demand.  But  where  the  Government  of  the  United  States 
is  compelled  to  intervene,  in  a  conflict  between  State  and  United  States 
authorities,  to  maintain  its  supremacy  and  secure  the  extradition,  the 
special  expense  sliould  be  paid,  in  the  first  instance  at  least,  by  the 
United  States. 

7  Op.,  330,  CusUing,  1855. 

The  ordinary  expenses  of  extradition,  including  fees  of  counsel,  should 
be  i)aid  by  tlie  demanding  Government. 
Ibid.,  C12. 

831 


§282]  EXTKADITION.  [CllAP.  XI. 

By  the  extradition  treaty  between   the  United  States  and  Prussia, 
the  expenses  of  extradition  are  borne  by  the  Government  demanding 
it,  and  a  comniissioner  or  marshal  may  lawfully  charge  such  fees  as  are 
usual  for  analogous  cases  rendered  to  the  United  States. 
9  Op.,  497,  Black,  1860. 

XV.   TEEATIES   RETnOSrECIlVE. 

§  282. 

Extradition  treaties,  it  has  been  held,  cover  cases  of  crimes  com- 
mitted before  their  adoption. 

Giacomo,  alias  Ciccariollo,  iw  jr,   12  lilatch.,  IJOl.     Seo,  lio we vor,  contra,  article 
by  Bar,  au  eminent  Gormau  jurist,  iu  the  Rovue  do  droit  tut.  for  lb77. 

832 


'^<^ojnv3jo'^ 


.-^  ^in 


% 


<^>^ 


Ix^'-'  ^IJONVSOl^"-^        %il3AIN(l^^v' 


Er       -< 


%a3AINn-3WV^ 


S/^.        ^vWSANCElfx^ 


^.J/OJIIVDJO^ 
^.OFCAIIFO/?^. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  851  286    5 


1^      "VAaBMNniwv 


-  4  ^ 


^El" 


.5     ^ 


<yOiliVJ-jO' 


'^^i/li'MSu 


55 


''^diAINiljWv 


i\^'^        ^^OAH^ 


-'t^AtlViiaii 


